Barrister and mediator Sydney Jacobs continues his series by exploring easements for recreation, Justinian’s Digests and Field Marshall Lord Kitchener of Khartoum. For more of his insights into an array of property matters, follow his series here.
The concentration camps into which men, women and children were herded during the Boer War, and where up to 28,000 died, are part of the legacy of Field Marshall Horatio Herbert Kitchener. These policies were controversial in their day, and it is apt that the estate left by him in England was recently enmeshed in controversy, although on a different field of contest.
The case I speak of, is Regency Villas Title Ltd v Diamond Resorts (Europe) Ltd  UKSC 57;  AC 553. Before I engage with that case, some brief background. The Roman emperor Justinian had collected into Digests, the laws of his times , including some sophisticated rules about “servitudes”, which in due time were absorbed into the common law, refined further, and became known as easements. One of the rules was that a mere ius spatiendi could not be the subject of a servitude.
Like the Via Appia, that rule lasts (to some extent), to this day.
Fast forwarding to more modern times, the common law says there are four essential features of an easement. The 2nd is that the easement must “accommodate” the dominant tenement; the 4th that the right must be capable of forming the subject matter of a grant: Re Ellenborough Park  Ch 131 at 163; foll’d in Australia: see e.g. Owners of East Fremantle Shopping Centre West Strata Plan 8618 v Action Supermarkets Pty Ltd  WASCA 180 at . In In re Ellenborough Park the fourth characteristic was further split into three cognate questions (at 164): the 3rd of which is whether such rights constitute mere rights of recreation, possessing no quality of utility or benefit. 
The outcome of In :Re Ellenborough was to recognise a (limited) easement for enjoyment of gardens—compare the complicated mix of rights afforded in Regency Villas  UKSC 57;  AC 553 which offered an opportunity to consider , at appellate level in the UK, the extent to which the right to the free use of sporting and recreational facilities provided in a country club environment may be conferred upon the owners and occupiers of an adjacent timeshare complex by the use of freehold easements. Broome Park is a country estate near Canterbury, and was formerly the home of Field Marshal Lord Kitchener of Khartoum. On it stands Elham House, the alleged dominant tenement, and also the Mansion House. The Mansion House, as part of prior development, had facilities provided including club house, a gym, a golf course, an outdoor heated swimming pool, tennis courts and gardens. When later the time came to develop Elham House, the developers granted occupants of Elham House rights, via a Transfer, including as follows:
“AND thirdly the right for the Transferee its successors in title its lessees and the occupiers from time to time of the property to use the swimming pool, golf course, squash courts, tennis courts, the ground and basement floor of the Broome Park Mansion House, gardens and any other sporting or recreational facilities (hereafter called ‘the facilities’) on the Transferor’s adjoining estate.” (“the Facilities Grant”)
The Transfer also contained a covenant by the developer to maintain the sporting and recreational facilities, but as its burden was positive and unsupported by other legal structures, it did not bind successors in title to the Park, including the appellants.
It seems as though the promoters hoped that that the Facilities which the timeshare owners were to be afforded the free use of, were to be managed, maintained and renewed by the owners of the Park by attracting fee-paying members of the public. “If that was the expectation, it does not appear to have been fulfilled.”: para 
Much of the analysis in the appeal focused on what the true intention was of the parties , in circumstances where there was no express obligation on the developer/ grantor to maintain / repair / renew the various recreational facilities into the future. For example, the appellants (successors to the initial grantors) submitted that this meant it was merely a personal obligation of the initial grantors: see eg  -; and it is interesting to see how their Honours went about their rejection of this submission.
However, that aspect it not the main thrust of this article –which is the approach to easements for recreation. The key issue in the case was whether the Facilities Grant was capable at law of amounting to an easement. There were subordinate issues, which I will not delve into, in this article. The approach of their honours in the SC was to first set about construing the easement , and identified the main features of the factual matrix against which the Transfer, was to be construed , and concluded at  that:
“First, it is abundantly plain that, whether successfully or not, the parties intended to confer upon the Facilities Grant the status of a property right in the nature of an easement rather than a purely personal right. It was expressed to be conferred not merely upon the Transferee, but upon its successors in title, lessees and occupiers of what was to become a timeshare development in multiple occupation. That being the manifest common intention, the court should apply the validation principle (“ ut res magis valeat quam pereat ”) to give effect to it, if it properly can.”
Though the rights conferred were to various independent facilities , the construction reached was that , in substance , it was “the grant of a single comprehensive right to use a complex of facilities, ……….. which may be changed and adjusted from time to time to suit customer demand without giving rise to separate and distinct grants of rights taking effect only in the future.”: at  -.
Two of the integers for a valid easement as articulated in Ellenborough Park (ibid) were in focus: paras  ff; but in sharpest focus , was the integer relating to mere rights of recreation. “The main controversy in the present case arises because the Facilities Grant conferred recreational and sporting rights, the enjoyment of which may fairly be described as an end in itself, rather than a means to an end (ie to the more enjoyable or full use of the dominant tenement). The origin of the controversy lies in the Roman law doctrine that a ius spatiandi cannot constitute a servitude……….. For present purposes that Latin phrase may simply be translated as meaning a recreational right to wander over someone else’s land. The difficulty arises as an aspect of the requirement that the right must accommodate the dominant tenement precisely because, generally speaking, the sporting or recreational right will be enjoyed for its own sake, on the servient tenement where it is undertaken, rather than as a means to some end consisting directly of the beneficial use of the dominant tenement.”: .
The conclusions of the Court of Appeal
The “right of utility and benefit” was seen by the CA  as the crucial integer for validity. The CA observed that that in modern society, exercise is perceived as “essential or at least a desirable part of [people’s] daily routines”, and that utility can be defined as either “[benefitting] the trade carried on upon the dominant tenement or the utility of living there”. 
Essential reasoning of the Supreme Court
The Supreme Court endorsed the reasoning of the Court of Appeal, as follows:
“This court should affirm the lead given by the principled analysis of the Court of Appeal in In re Ellenborough Park , by a clear statement that the grant of purely recreational (including sporting) rights over land which genuinely accommodate adjacent land may be the subject matter of an easement, provided always that they satisfy the four well-settled conditions which I have described. Where the actual or intended use of the dominant tenement is itself recreational as will generally be the case for holiday timeshare developments, the accommodation condition will generally be satisfied. Whether the other conditions, and in particular the components of the fourth condition, will be satisfied will be a question of fact in each case. Whatever may have been the attitude in the past to “mere recreation or amusement”, recreation and sporting activity of the type exemplified by the facilities at Broome Park is so clearly a beneficial part of modern life that the common law should support structures which promote and encourage it, rather than treat it as devoid of practical utility or benefit.”: para .
Will Regency Villas be followed in Australia ?
In my view, likely yes. Australian cases have already approved of In Re Ellenborough. Further, at least one Australian has , as noted in Regency Villas, at  enthusiastically followed the lead given by Re Ellenborough , by recognising a grant in favour of residential lots, for the purposes of recreation over a garden or a park, viz Riley v Penttila  VR 547.
But Lord Kitchener of Khartoum was controversial, and it remains to be seen what degree of application is afforded by Australian courts to those elements of In Re Ellenbourough relating to mere recreation.
 See the Wikipedia entry for Lord Kitchener.
 Approved in inter alia Clos Farming Estates Pty Ltd v Easton  NSWCA 389; (2002) 11 BPR 20,605 at .
 Regency Villas v Diamond Resorts  EWCA Civ 238,  3 WLR 644 
 Regency Villas v Diamond Resorts  EWCA Civ 238,  3 WLR 644 
Sydney Jacobs obtained his Masters Degree in Law from Cambridge and practices in the areas of commercial / equity including real property , partnership disputes and building and construction law. Many contracts he is called to advise on, have mediation / arbitration clauses.
He has acquired in -depth experience in the area of property law including eg sales of property “off the plan”, challenging notices to complete, issuing notices to perform, obtaining easements via applications under Sec 88 K of the NSW Conveyancing Act , advising and drafting papers in applications to remove easements as being obsolete and seeking interim and permanent injunctions against interference with easements. His arbitration experience includes being a NSW Bar accredited arbitrator, appearing in arbitrations and technical references, and being part -author of what is understood to be the definitive loose -leaf arbitration service in Australia, published by ThomsonReuters.
He is the sole author of two other major services for ThomsonReuters , Commercial Damages and Injunctions: Law & Practice
Prior to being called to the Bar, Sydney was a commercial litigator with a construction law focus, at a Minter Ellison and Deacons James & Graham (now Norton Fullbright).
For a full list of his cases ,articles and Thomson Reuters publications , feel free to view
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