Jersey Unreported Judgments
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URL: http://www.bailii.org/je/cases/UR/2022/2022_157.html
Cite as: [2022] JCA 157
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Russell and Russell v Falle [2022] JCA 157 (27 July 2022) URL: http://www.bailii.org/je/cases/UR/2022/2022_157.html Cite as: [2022] JCA 157 |
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Property - interpretation of servitudes.
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Before : |
George Bompas QC, President; Helen Mountfield QC; and Jeremy Storey QC |
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Between |
Michael Charles Russell |
First Appellant |
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And |
Karen Anne Russell |
Second Appellant |
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And |
Jean Pierre Vernon Falle |
Respondent |
IN THE MATTER OF THE REPRESENTATION OF JEAN PIERRE VERNON FALLE
AND IN THE MATTER OF LA CÔTE
Advocate A. D. Hoy for the First and Second Appellants
Advocate G. D. Emmanuel for the Respondent
judgment
STOREY J A:
1. This is the judgment of the Court on an appeal against an order of the Royal Court of 29th March 2022 Falle v Russell and Russell [2022] JRC 077 (Heritage Division) that:
(a) Jean Pierre Vernon Falle ("Mr Falle") was obliged under clause 13 of a Deed of Conveyance passed before the Royal Court on 13 September 1985 (the "Conveyance") to build the visible element of his northern gable in bricks or stone or bricks and stone, visible and not rendered;
(b) Mr Falle has the right under clause 14 of the Conveyance to use his neighbour's Access Area for the purpose of replacing the outer leaf of his existing northern gable wall with bricks or stone or bricks and stone, visible and not rendered and that it is necessary for him to do so;
(c) Mr Falle has an implied right under clause 14 onto and over the neighbouring Beach House in order to get to and from the Access Area, to be exercised civiliter; and
(d) Mr Falle has an implied right under clause 14 to erect scaffolding or to use ladders on the Access Area.
2. We adopt the same definitions as used in the judgment of the Royal Court (Clyde-Smith Commissioner sitting with Jurats Crill and Cornish) dated 29 March 2022 (the "Judgment") to be found at [2022] JRC 077.
3. Mr Falle has owned land at Les Petit Sablons, La Grande Route des Sablons, Grouville since 1981 and he constructed a three-storey detached property on the land ("La Côte") in about 1985/86. The property immediately to the north, Beach House, was constructed at about the same time by the predecessors-in-title of Michael Charles Russell and Karen Anne Russell ("Mr and Mrs Russell"). Mr and Mrs Russell have occupied Beach House since 13 March 2000.
4. Mr Falle wishes to carry out works to the existing 30 foot northern gable of La Côte by removing the non-load-bearing 100mm outer leaf of blockwork of the concrete cavity wall and replacing it in brick, using scaffolding erected over the Access Area. Mr and Mrs Russell refused to permit such access. Mr Falle commenced proceedings on 23 February 2021 seeking appropriate declarations (which the Royal Court granted). The hearing was conducted on 19 and 20 January 2022 and included a site visit.
5. The background to the dispute was helpfully set out at paragraphs 1 - 19 of the Judgment:
6. Paragraph 19 of the Judgment records that the first issue was not part of Mr Falle's pleaded case nor did it feature in Advocate Emmanuel's skeleton argument for trial. When the issue was raised by the Court Mr Falle accepted that he had been obliged to build the visible part of the northern gable in bricks/stones and so was in breach of clause 13 of the Conveyance, although Mr and Mrs Russell had never sought to enforce it (see paragraphs 16 and 18 of the Judgment, paragraphs 8b and 11 of Advocate Emmanuel's skeleton argument for trial and paragraphs 2, 16 - 17 and 24 of Advocate Hoy's skeleton argument for trial).
7. According to Mr Falle the breach of clause 13 has resulted in a reduction in the value of La Côte of about £350,000.
8. Mr Falle's Amended Representation confirms at paragraph 11b that Mr Falle is in breach of clause 13 of the Conveyance. At paragraph 41 the following resolutions were sought:
The following relief was sought:
· Principles of construction
9. The Royal Court set out the relevant general principles of construction of servitudes at paragraphs 20 - 30 of the Judgment including the following:
10. The relevant background matters to which the Royal Court had regard was set out at paragraphs 27 - 28 of the Judgment:
11. For the purpose of the presumption for freedom in relation to servitudes where there is any ambiguity, the Court determined (after some initial uncertainty) that Beach House was the servient tenement: paragraphs 43 and 45 of the Judgment.
12. The presumption was explained by Southwell JA at paragraph 3 of this Court's judgment in The Colesberg Hotel (1972) Limited v Alton Hotel Limited [2003 JLR 176]:
13. In Haas (née Daniel) v Duquemin and Duquemin (née O'Toole) [2002 JLR 27] Hodge JA had stated this at paragraph 44:
14. The presumption that land is free from burdens is subject to exception "where this would result in great hardship on the dominant tenement": Property Law in Jersey by Rebecca MacLeod (2012) ("MacLeod 2012") at p 196.
15. There is no challenge by either party to the Royal Court's principles of construction although Advocate Hoy criticised the Court's application of those principles to the facts.
· The first issue
16. It was common ground that clause 13 of the Conveyance was a passive obligation because Mr Falle could choose to build sufficiently within La Côte so as to maintain the northern gable from his own property (paragraph 31 of the Judgment). The issue was whether, if he did build the northern gable against the basement supporting wall, was he required to do so in bricks/stones for the entire structure (as Mr and Mrs Russell contended) or only for the visible element of it?
17. The Court construed "étant entendu" as giving rise to an enforceable obligation and this is not challenged on appeal (paragraphs 32, 38 - 42 and 44 of the Judgment).
18. The Court concluded that the requirement to build in bricks/stones was not to ensure solidity or safety for the purpose of the droit de jointure of Beach House (contrast clause 24 "un bon mur en briques ou en pierre") - this was a given (paragraph 35 of the Judgment). The purpose of clause 13 of the Conveyance was to enhance the appearance of the northern gable from Beach House ("le tout visible et non ravalé") (paragraphs 33 - 37 and 48 - 52 of the Judgment).
· The second issue
19. The Court concluded that the right of access enjoyed by La Côte and the droit de jointure enjoyed by Beach House under clauses 13/14 of the Conveyance were not conditional upon strict compliance with clause 13 by La Côte. Such would be "wholly disproportionate" because Mr Falle's only option in 2022 would be to demolish part of La Côte and rebuild the northern gable sufficiently within La Côte to enable it to be maintained entirely from La Côte, "a very costly exercise ... [with] a very detrimental impact upon the existing house ...". Mr Falle is therefore entitled to replace the outer leaf of the existing northern gable with one built of bricks/stones to comply, belatedly, with clause 13. Such will not "aggravate" the servitude (paragraphs 46(iv) and 48 - 52 of the Judgment). Further, if the northern gable was to be finished with bricks/stones Beach House would regain its droit de jointure, a potentially valuable right because it would allow the owners to build over that part of the plot kept free to enable maintenance of their own southern gable (paragraph 47 of the Judgment).
20. Mr Falle's right of access under clause 14 of the Conveyance can only be exercised:
(i) "lorsqu'il deviendra nécessaire" (which it is, in order to achieve conformity with clause 13); and
(ii) "aussi vite que possible, de causer le moindre d'inconvénient possible audit Donataire et de remettre les lieux affectés en bon état de reparation une fois lesdits travaux achevés" (paragraph 53 of the Judgment).
· The third issue
21. The Court found as a fact that entry to the Access Area from La Côte could only be achieved without crossing Beach House by being lowered from the roof of La Côte or by climbing onto the party wall at the eastern end of the basement wall and jumping down at an angle, so there was no reasonable and safe way to get to the Access Area without crossing Beach House (paragraphs 56 - 57 of the Judgment). Therefore La Côte had an implied right of access onto and over Beach House in order to use and enjoy the servitude created by clause 14 of the Conveyance because such is "necessary" (paragraphs 70 - 73 of the Judgment): Loix Civiles dans leur Ordre Naturel, Tome Ⅲ, 2nd edition, by Domat (1694) at Titre XII, Section 1 at VII (pp 409 - 410), Coutumes des Duché, bailliage et prévôté d'Orlèans et ressort d'iceux by Pothier (1780) Article IV (p 394), Code Civil (1804) Articles 696 and 697, Nouveau Répertoire de Droit, 2nd edition, by Dalloz (1962) (paragraph 465 at p 381), The Jersey Law of Property, 5th edition, by Matthews and Nicolle (1991) (1.46 at p 12), MacLeod (2012) (pp 203 - 205), Fogarty v St Martin's Cottage Limited [2016 (2) JLR 246] per Sir Richard Collas, Bailiff of Guernsey, at paragraph 102, and Law of Immovable Property, 12th edition, by MacLeod (2020-21) ("MacLeod 2020-21") (10.86 and 10.87 at p 174) (paragraphs 60 - 69 of the Judgment). Such right is not a new servitude but an accessory to an existing one (paragraph 58 of the Judgment).
22. The right of access under clause 14 of the Conveyance must be exercised civiliter: The Colesberg Hotel (1972) Limited v Alton Hotel Limited [2003 JLR 47] per Bailiff Bailhache at paragraph 25.
· The fourth issue
23. Although there is no reference to "échafaudages" - or "ȇchelles" - in clause 14 of the Conveyance (contrast clause 13 allowing Beach House access to La Côte "avec ou sans ouvriers, matériaux, ȇchelles et échafaudages") it was known at the time of the Conveyance that work to the northern gable could not be carried out from ground level. In 1985, the Construction Safety Provisions (Jersey) Regulations 1970 (the "Regulations") were in force, Regulation 53 of which required the use of scaffolds or ladders or other means of support where work cannot safely be done on or from the ground or from part of the building or other permanent structure (paragraphs 75 - 79 of the Judgment).
24. The Court found as a fact that the servitude in clause 14 of the Conveyance would have been rendered unusable without the ability to use scaffolding (paragraph 80 of the Judgment).
25. The Court accordingly found that Mr Falle has an implied right under clause 14 of the Conveyance to erect scaffolding (and place ladders) on the Access Area (paragraph 85 of the Judgment).
26. "Matériaux" in clause 14 of the Conveyance must by necessary implication extend to scaffolding and ladders to comply with health and safety regulations in force from time to time (paragraphs 81 and 82 of the Judgment).
27. The extension of scaffolding by three feet or so at each end of the northern gable (thereby allowing access from La Côte at both ends) will cause the least inconvenience to Mr and Mrs Russell, following the principle of civiliter (paragraphs 83 and 84 of the Judgment).
28. Mr and Mrs Russell seek to set aside the order of 29 March 2022. The order has been stayed pending this appeal. We had the benefit of written contentions from Advocate Hoy (10 June 2022) and Advocate Emmanuel (8 July 2022) and oral submissions on 26 July 2022.
· The second issue
29. In their Appeal Notice of 21 April 2022 Mr and Mrs Russell do not challenge the findings of the Royal Court that:
(i) the obligation to build at least the visible part of the northern gable in brick or stone or brick and stone contained in clause 13 of the Conveyance was mandatory;
(ii) Mr Falle was in breach for using rendered concrete blockwork in his construction of the northern gable six inches from the boundary with Beach House;
(iii) Beach House was the servient tenement; and
(iv) the right of access under clause 14 of the Conveyance is exercisable "lorsqu'il deviendra nécessaire".
They relied, in particular, upon the finding that Mr Falle was allowed to build and maintain a gable in a position much closer to Beach House than would ordinarily be the case. However, they submitted that, as Mr and Mrs Russell had no intention of enforcing clause 13, Mr Falle has no right of access (under clause 14) to re-construct the gable in unrendered bricks/stones 36 years after construction in order to comply with clause 13 when such is not "nécessaire".
30. Mr and Mrs Russell challenge:
(i) the finding of the Royal Court that only the visible outer part of the northern gable of La Côte needed to be built in bricks/stones (because clause 13 is concerned with construction not simply aesthetics); and
(ii) the conclusion that the right of access under clause 14 was not conditional upon the visible element of the gable having been constructed in unrendered bricks/stones in compliance with clause 13 (because Mr Falle was only permitted to build within six inches of the boundary with Beach House if the gable was constructed in unrendered bricks/stones).
In other words, they submitted that merely 'facing' the northern gable of La Cȏte with bricks/stones would not comply with clause 13, and that the clause 14 access right had, in effect, been extinguished by the initial decision to build in breezeblock and render.
31. Further, insofar as the Court considered proportionality Mr and Mrs Russell submitted that it did not do so properly (by addressing the consequences for both parties and considering whether such consequences "were capable of being equitably remedied by the imposition of conditions on Mr Falle, including as to damages").
32. Their case was that the Royal Court failed to identify, sufficiently or at all, the presumed intention of the parties when interpreting clauses 11, 13 and 14 of the Conveyance - that access to Beach House for maintenance of La Côte should be prohibited (the black brick basement wall under clause 11) or minimised (the northern gable under clause 14) to what was "nécessaire". Clause 14 did not give Mr Falle the right to construct a gable, only to maintain one built in unrendered bricks/stones.
33. Mr and Mrs Russell complain that the Court failed to apply the presumption of freedom of servitude in construing clause 14.
· The third issue
34. Mr and Mrs Russell's appeal on the third issue was on the basis of the submission that the Royal Court ignored the presumed intention of the parties to limit maintenance of La Côte, the dominant tenement (see paragraph 32 above).
35. The Access Area is not "enclavé" but accessible (even if not conveniently so) from La Côte. They therefore submitted that there is, as a result, no necessity for access because:
(a) no works were necessary to the northern gable because Mr and Mrs Russell were not insisting on a rebuild; and/or
(b) access is not impossible.
The test is not one of convenience or reasonableness.
· The fourth issue
36. Mr and Mrs Russell submitted that clause 14 does not refer to "échafaudages" (whereas clause 13 does) and so the presumed intention of the parties was to exclude it.
37. The Royal Court was of the view that no permission was required to appeal, the decision being final and determinative of the Representation. Nevertheless, Advocate Hoy, out of an abundance of caution, sought permission from Commissioner Clyde-Smith who refused it on 29 March 2022.
38. In our view the Commissioner was correct, Mr and Mrs Russell do not need permission to appeal: Planning and Environment Committee v Lesquende Limited [2003 JLR 15] at paragraphs 8 - 9 (Deputy Bailiff Birt) and [2003 JLR Note 8] (CA).
39. Given that Mr and Mrs Russell make no complaint about the admitted breach of clause 13 of the Conveyance the resolution of the first issue may be academic. This is acknowledged by the words "or generally" in the second issue (see paragraph 5.19(ii) above). Unless Mr Falle's right of access under clause 14 of the Conveyance is conditional upon strict compliance with clause 13, it will be unnecessary for us to address whether the Royal Court was correct to construe clause 13 as requiring only that the visible element of the northern gable of La Côte be constructed in bricks/stones. We therefore begin by addressing the second issue.
· The second issue
40. The Royal Court made a number of relevant findings:
(i) the Conveyance permitted Mr Falle to build and maintain the northern gable within six inches of the southern boundary of Beach House - "much closer ... than would ordinarily be the case";
(ii) a reciprocal right was granted to Beach House which was given a droit de jointure against the northern gable of La Côte ("an encroachment over six inches or so of [La Côte] should the droit de jointure be exercised") - a potentially valuable right to the owners of Beach House "in that it enables them to build over that part of their property that has been kept free to enable maintenance of their own southern gable". In order to exercise their droit de jointure, the owners of Beach House had access onto the six inch wide strip of La Côte, including with scaffolding (clause 13 of the Conveyance); and
(iii) the northern face of the supporting basement wall of black brick on La Côte could be built up to the boundary line with Beach House but Mr Falle had no right of access onto Beach House to maintain it (clause 11 of the Conveyance). Beach House had the droit de jointure to this basement wall.
41. It follows, therefore, that clause 14 allows maintenance of a gable which may be constructed entirely or partially of brick, in contrast to the prohibition of maintenance of the brick supporting basement wall under clause 11.
42. Clause 14 is not expressly 'subject to clause 13' or 'subject to compliance with clause 13'. It is subject only to the "droit de jointure accordé audit Donataire [Beach House] en vertu de la Clause 13 ...".
43. Advocate Hoy's reliance upon the two references in clause 14 to the "ledit pignon" and "dudit pignon" do not, in our view, make compliance with clause 13 a condition precedent to the exercise of the rights granted by clause 14. The same words "ledit pignon"/"dudit pignon" are used five times in clause 13, but all prior to the only mention of "briques" or "pierres". Access is therefore granted in order to maintain, upkeep, repair or replace the northern gable, irrespective of its materials. The relevant question is what the parties intended at the time of the Conveyance. It seems to us unlikely that the probable intention of the parties to the Conveyance was that if the owners of La Côte failed to comply in full with clause 13 at the time of construction in 1985/86 (for example, by applying rendering between certain stones in the gable), the rights under clause 14 would be lost in perpetuity. Advocate Emmanuel said this would be the case, for example, if the gable was damaged subsequently by, say, subsidence, lightening or storm damage. We agree with paragraph 52 of the Judgment that the right of access to maintain under clause 14 has not been lost by non-compliance with clause 13.
44. Clauses 13 and 14 are each self-standing. The purpose of clause 13 was to ensure that the visible face of the northern gable of La Cȏte was built in bricks/stones. If it was not, the owners of Beach House would have their remedies for breach of contract and could claim for specific performance and/or damages (as Advocate Hoy conceded before the lower court). Thus, the "far simpler solution" (as described by Mr Falle's consulting engineer) of attaching brick slips to the northern gable would bring the construction into conformity with clause 13. We mention this because it is likely that this would make the construction work less complex and lengthy, and consequently any inconvenience to the owners of Beach House less onerous.
45. Advocate Hoy submitted that, even if the rights under clause 14 did not require compliance with clause 13, those rights can only be exercised "lorsqu'il deviendra nécessaire" and that Mr Falle's proposed works are not necessary - notwithstanding the Royal Court's finding to the contrary at paragraph 53 of the Judgment as the works are to bring the gable into conformity with clause 13 and "to render La Côte saleable" (paragraphs 17 and 18 of the Judgment).
46. We question the Royal Court's interpretation of clause 14 on the requirement of necessity. The clause does not, in our view, require the works of maintenance, upkeep, repair or replacement of the gable to be necessary. It requires the right of access to be necessary in order to perform such works of maintenance, upkeep, repair or replacement as may be reasonably required - subject to the requirements which are also contained within clause 14 to undertake such works as quickly and as conveniently as possible. This is to cater for the situation when the relevant works can be carried out without access to Beach House, in which case they must be. In order to undertake works so as to ensure the northern gable's construction complies with the requirements of clause 13, the works cannot reasonably or safely be carried out without access over Beach House, so access is "nécessaire".
47. We regard the ordinary meaning of the words "maintenir, entretenir, réparer ou remplacer" as wide enough to encompass Mr Falle's proposed works. Advocate Hoy accepted during the hearing below that the gable was presently in need of some repair or maintenance. The works are not, as Advocate Hoy argued, works of "original construction". They are works of partial replacement. Furthermore, a gable built of bricks/stones in compliance with clause 13 might well require maintenance, upkeep, repair or partial replacement during perpetuity, although - as we observed during the course of argument - likely less regular and extensive maintenance than a wall faced with rendering.
48. As to the presumption of freedom from servitudes, Advocate Hoy submitted that:
(i) the Court failed to consider its application - had it done so the clause 14 servitude would have been interpreted so as to free Beach House of the obligation to suffer access for maintenance; and/or
(ii) the Court failed to consider the balance of hardship on both parties - had it done so it ought to have concluded that the dominant tenement (La Côte) would not suffer great hardship, whereas the servient tenement (Beach House) would, because of Mr Falle's failure to comply with clause 13 (which would have entitled Mr and Mrs Russell to be granted an equitable remedy including the payment of damages). The balancing exercise should have resulted in the Court restricting Mr Falle to relocating the northern gable "sufficiently on La Côte to be maintained without recourse to the Beach House". Otherwise La Côte can "benefit inequitably from its breach of clause 13 by remaining as a dominant tenement in clause 14 and benefitting from its access and maintenance rights", whereas Beach House "has to endure a servitude of access and maintenance that it does not want and for a gable on its boundary that it never agreed to".
49. As to (1): we accept that the Court did not expressly consider the application of the presumption. However, such would only be required in the event of any ambiguity. In our view there is no ambiguity in the clear wording of clause 14 and so the presumption does not apply.
50. As to (2): it is clear on any fair reading that the Court did consider the issues of (i) "a fair balance between the Beach House and La Côte" and (ii) "proportionality" at paragraphs 16 - 18, 30, 43, 46(iv) and 49 - 50 of the Judgment. This included:
(a) the requirement for Mr Falle to remove the northern gable in its entirety (to be undertaken from the La Côte side) and rebuild the northern gable sufficiently within La Côte to enable it to be thereafter maintained from within La Côte - if he is to be denied access to Beach House - a very costly exercise with a very detrimental impact upon the existing house built on La Côte (a significant reduction in size and the potential loss of the garage);
(b) the (temporary) increase in access over Beach House to carry out the necessary works; and
(c) although Mr and Mrs Russell have chosen not to enforce clause 13, Mr Falle will now comply with the clause, from which Beach House will derive a benefit.
51. The question of "great hardship" (see paragraph 14 above) does not arise where, as we have found here, the presumption does not apply. If we were wrong on this, however, we consider that the great hardship exception to the presumption would in any event have been engaged here. The question of balancing the rights of the two parties when considering the extent of a servitude was addressed at MacLeod 2012 as follows:
52. As we have stated at paragraph 40 above (and as conceded at paragraph 44 of Advocate Hoy's written contentions), the benefit of La Côte to maximise its plot and maintain its northern gable from Beach House was "in return for a droit de jointure" on a six inch wide strip of land retained by La Côte, "with all necessary rights of access [by] Beach House on to such land, with or without workmen, materials, ladders and scaffolding in order to provide his right of jointure" (transcript day 1p 44).
53. Further, it would be disproportionate and against the interests of justice to require Mr Falle to demolish the northern gable and rebuild it further back from the boundary with Beach House (a situation not dissimilar to Fogarty: see paragraphs 119, 128 - 132 and 139 - 141 of the Bailiff of Guernsey's judgment), especially when Mr and Mrs Russell had actual or constructive knowledge of the breach of clause 13 by Mr Falle when they purchased Beach House in 2000 (Fogarty at paragraphs 78 and 120).
54. Finally, we reject Advocate Hoy's submission on behalf of Mr and Mrs Russell that it would be an aggravation to access Beach House if Mr Falle carried out the proposed works (i.e. a lawful use used to an unlawful level). In our view, the Royal Court was correct, at paragraph 51 of the Judgment, to reject such submission. The exercise of the servitude is not making the burden on Beach House generally more inconvenient or more onerous than would have been the case had there been compliance with clause 13 in 1985/86 - once the proposed works have been completed the status quo will have been restored. This was a similar position as in Colesberg where a single property was to be replaced by two blocks of flats (MacLeod 2020-21 at 10.95 on p 178). The servitude in clause 14 must still be exercised within the limits of the need for which it was created and must not breach the civiliter principle. It is obviously a matter for the parties to decide how to proceed with the benefit of our decision and reasons. For example, Mr and Mrs Russell may prefer to release Mr Falle and his successors-in-title from the positive covenant in clause 13 in order to obviate the immediate need for any access to Beach House.
55. In conclusion on the second issue, there was no error of law in the Royal Court's interpretation of clause 14 of the Conveyance and its determination of this issue.
· The first issue
56. In the light of our conclusion at paragraphs 41 - 44 above that compliance with clause 13 is not a condition precedent to the exercise of access rights under clause 14, it is unnecessary for us to express any view on the first issue. However, as discussed in paragraph 44 above, we would add that in our judgment the Royal Court was not in error to conclude that Mr Falle's obligation under clause 13 was to build only the visible element of the northern gable in unrendered bricks/stones, essentially for the reasons given in paragraphs 34 - 37 of the Judgment (see paragraph 18 above).
· The third issue
57. The ability to imply a right of access into a servitude is not in dispute, only the application of such principle to the facts. Advocate Hoy sought to distinguish the authorities and texts relied upon by the Royal Court (see paragraph 21 above) on the basis that the Access Area is not enclavé or impossible to access, so there is no necessity for an implied accessory servitude. Advocate Emmanuel submitted that:
(1) the Access Area was, in effect, enclavé because there was no safe direct access; and
(2) if the Access Area is not enclavé this is immaterial for an accessory to an existing servitude.
58. We have ourselves reviewed the sources relied upon by the Royal Court. They include examples such as access to a well (Article 696 of the Code Civil, Domat, Pothier, Dalloz at paragraph 465 on p 381, Matthews and Nicolle at 1.46 on p 12, MacLeod 2012 at p 203 and MacLeod 2020-21 at 10.87 on p 174), access to maintain (Fogarty at paragraph 102 and MacLeod 2012 at p 204), access to repair (Domat) and access to install a structure (MacLeod 2012 at pp 203 - 204).
59. In our judgment the Court was correctly applying a test, not of convenience, but of reasonable necessity. It was well entitled to conclude (after a site visit) that access (for workmen and materials and for as short a time as possible) was "nécessaire" when the only other possible way to reach the Access Area without crossing Beach House was one which was not safe. MacLeod 2012 (referred to at paragraph 69 of the Judgment) states as follows:
60. The principle discussed in the relevant sources and in Moncrieff (which we believe states the law of Jersey as well as the law of Scotland - see Sir Philip Bailhache's foreword to MacLeod 2012 and Haas per Hodge JA at paragraphs 41 - 42), is not restricted to land which is "enclavé". In any event, the Access Area is, in practice, enclavé as Advocate Emmanuel argued.
61. There was no error of law in the Royal Court's determination of the third issue.
62. Mr Falle can therefore carry out his works in accordance with paragraph 83 of the Judgment (or paragraph 84 if Mr and Mrs Russell prefer). We repeat paragraph 72 of the Judgment that the implied right of access must still be exercised civiliter - that is the only relevance of Advocate Hoy's reliance in paragraphs 58 - 59 and 69 of his contentions on Domat's Loix Civiles, De Servitudes, Tome 1 (1745), Book 1, title 12, sect Ⅰparagraph 9, at 117 (see Haas at paragraph 44: paragraph 13 above). We note that in Mr Falle's engineer's method statement of December 2021 it was only for the purposes of erecting scaffolding that such access would be required; thereafter, all materials, equipment and tools could be delivered, unloaded and stored within the yard area of La Cȏte.
· The fourth issue
63. Advocate Hoy submitted that scaffolding was unnecessary, "échafaudages" was expressly excluded from clause 14 (although included in clause 13) and the Regulations are irrelevant, as they provide no rights over property. He accepted that the omission of "ȇchelles" from clause 14 was a 'flaw' because access in order to maintain, upkeep, repair or replace the gable involves working at height.
64. Despite the deliberate omission of "échafaudages" and "ȇchelles" from clause 14, the express term "matériaux", used in both clauses 13 and 14, was, in our view, clearly intended to include scaffolding and ladders, as the Royal Court held.
65. Just as entry to the Access Area via Beach House is "nécessaire" so may be the use of "échafaudages" when maintaining, upkeeping, repairing or replacing the northern gable, both as a matter of "reasonable necessity" and lawful compliance with the Regulations (see paragraph 24 above) and as a matter of interpretation of clause 14. This is supported by the engineer's method statement: "We have reviewed the options of undertaking the works without accessing Beach House but without this a scaffold cannot be erected. Without the use of a scaffold, we do not see how these works could be undertaken in a safe manner and would result in a major breach of Health and Safely legislation" (our emphasis).
66. There was no error of law in the Royal Court's determination of the fourth issue.
67. We repeat what we said at paragraphs 54 and 62 above about civiliter.
68. We uphold the Judgment of the Royal Court and dismiss the appeal. The consequence is that Mr Falle has the right to enter the Access Area of Beach House for the purpose of erecting scaffolding for the period reasonably required to undertake works so as to put the northern gable in conformity with clause 13. We note that, on our interpretation of clause 13, facing the wall with brick slips would suffice to comply with the clause, which may minimise the work required and inconvenience likely to be caused to Mr and Mrs Russell.
69. We have seen recent photographs which show a small new structure erected by Mr and Mrs Russell on the Access Area required for the proposed works. Advocate Hoy maintained that even if the appeal was dismissed Mr and Mrs Russell would be entitled to exercise their droit de jointure under clause 13. However, when pressed by all three members of the court, he accepted that the current structure would not constitute any droit de jointure as it was not joined to La Cȏte. If this structure prevents Mr Falle's exercise of his clause 14 access right, it will need to be removed beforehand. If it is not, Mr Falle may have to seek injunctive relief from the Royal Court. We express the strong hope that this will not be necessary - such a course would no doubt extend the period of inconvenience for both parties.
70. Any attempt to exercise the droit de jointure in the future would doubtless require prior planning and other building regulation consent. It is to be hoped that Mr Falle's works can be completed well before any attempt by Mr and Mrs Russell to exercise any such right. Finally, we observe (without deciding the point) that any droit de jointure exercised by Mr and Mrs Russell would not eliminate the need to maintain, upkeep, repair or replace the gable (with access onto the Access Area) unless the extension to Beach House was to the full height and width of the northern gable of La Cȏte.