Man Wa Tong (Suing By Its Manageress for Themselves and Others) v. Shih Chao Jung and Another

HCA 10388/2000

[2020] HKCFI 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 10388 OF 2000

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BETWEEN

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D E C I S I O N

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Background

1.This action has a long history.  It concerned disputes over entitlement to certain land in a hilly area in Tsuen Wan in which there were several Buddhist establishments.  The action was settled in 2006 by written agreement between the parties.  The present summons before the court raises questions about the proper interpretation of that agreement. Specifically, the issues are whether the right of way granted by the agreement covers vehicular access and, if so, whether there is an ancillary right to park vehicles.

2.The plaintiff, Man Wa Tong (曼華堂), is apparently an unincorporated association.  It is the registered owner of the piece of land at Fu Yung Shan (芙蓉山), Tsuen Wan, known as the Remaining Portion of Lot No 1255 in Demarcation District 453, Fu Yung Shan, the New Territories (“Land”), on which a Buddhist temple called Chuk Lam Sim Yuen (竹林禪院) (“Temple”) stands.  The plaintiff manages the Temple and the Land.

3.The 1^st defendant, Shih Chao Jung (釋照融), is a Buddhist nun who is in occupation of and has (at least up to 2017) been managing the Buddhist establishment called Kwun Yam Ngam or Guan Yin Grotto (觀音巖) (“Grotto”), which lies partly within the Land and partly in neighbouring lots not owned by the plaintiff.  The Grotto was gradually built up in the mid 1950s to 1960s by the late Sik Luen Cham (釋倫參), with the consent and, indeed, support of the Rev Yung Chau (融秋) who was then the manager monk of the Temple. 

4.By around 2000, however, a dispute had arisen between the plaintiff and the 1^st defendant.  By an action, viz HCA 10388/2000, the plaintiff sought against the 1^st defendant and the 2^nd defendant (defined as all other persons in occupation of the disputed areas) declarations that they had been in occupation of that part of the Land taken up by the Grotto with the licence of the plaintiff which had been terminated, and orders for vacant possession.  The 1^st defendant opposed the action, and counterclaimed that she was entitled to the disputed portions of the Land by adverse possession or proprietary estoppel and also to a right of way over an access road (which has become known as the “Yellow Road” as described below) on various bases including prescription, presumed grant or dedication to the public.  It was not in dispute that the Yellow Road had been made available to the public for access to the Grotto;[1] the dispute was over the legal basis of that access.

5.The action went to trial in October 2006.  In the course of the trial, the plaintiff and the 1^st defendant managed to reach a compromise, which was eventually embodied in the schedule to the Tomlin order dated 27 October 2006, whereby the action was stayed except for the purpose of carrying into effect the terms of the parties’ agreement annexed to the order (“Agreement”), with liberty to apply.

6.The Agreement relevantly provides as follows:

「 (1) 原告人同意給第一被告人（及她的授權徒弟和參拜人士）一個不可撤銷的合約許可證，在原告人的丈量約453第1255地段剩餘部份 (Lot No. 1255 RP in D.D. 453) 現有政府地契（以下簡稱「現有政府地契」）的餘下年期內，獨有、佔用和使用附在本協議附件一的圖上，以橙色和粉紅色標明的土地（以下簡稱「橙色土地」及「粉紅色土地」）,純粹作為佛教崇拜和修行目的。該合約許可證是屬於第一被告個人，她不可將其再授予任何其他人士,但該合約許可證可由她的一個她指定的佛教繼承人在她死後個人持有，不可將其再授予任何其他人士。若果當該許可證存續時第一被告人死亡，她有權在死前委派她一位佛教繼承人，在她死後取代她成為本協議的許可證持有人，並以書面由第一被告人及其委派之佛教繼承人雙方簽名確認並送交通知原告人。接受第一被告人委派成為本協議的許可證持有人之佛教承繼人必須受本協議所有條款所約束。該佛教繼承人在現有政府地契的餘下年期，亦可由一位其指定的佛教繼承人在其死後個人持有該合約許可證，條件同上。而該佛教繼承人亦可同樣地指定一位佛教繼承人在其死後個人持有該合約許可證，條件同上。在上述最後一位佛教繼承人死後,此協議便自動終止。因此在本協議下所述的「第一被告人」，包括第一被告人及其以本條規定所委派的書面確定的佛教繼承人及其後之佛教繼承人。

(2) 原告人同意給第一被告人、其訪客和參拜人士一不可撤銷的通道權（“right of way”）,在現有政府地契餘下年期，以在附件一上用黃色標明的路（以下簡稱「黃色道路」），每年365日全日24小時暢通無阻地由芙蓉山道前往上述許可土地。

…

(14) 雙方同意在本協議第（2）條給予的通道權存續的整個期間，沿着在黃色道路上現存有關觀音巖的路牌和山門須保持不變。第一被告人須負責自費將該些路牌和山門作合理的維修和保養。…」

In English translation:

“ (1) The Plaintiff consents to give the 1^st Defendant (and her authorised followers and the worshippers) an irrevocable contractual licence to occupy exclusively and use the land marked in orange and pink in the plan attached to the Appendix 1 to this Agreement (“orange land” and “pink land”) during the residue of the term of the Plaintiff’s existing Government Lease (“existing Government Lease”) of Lot No 1255 RP in DD 453, purely for the purposes of Buddhist worship and practice. The contractual licence belongs to the 1^st Defendant personally, and she is not to grant it further to any other person. However, after her death, it may be held personally by her Buddhist successor designated by her, and it is not to be granted further to any other person. Where the 1^st Defendant dies while the licence subsists, she is entitled to appoint her Buddhist successor before her death to take her place as the licensee under this Agreement after her death, with confirmation in writing signed by the 1^st Defendant and her appointed Buddhist successor and sent to inform the Plaintiff. The Buddhist successor who accepts the appointment by the 1^st Defendant as the licensee in this Agreement shall be bound by all the terms and conditions of this Agreement. The Buddhist successor, during the residue of the term of the existing Government Lease, may also designate a Buddhist successor to hold personally the contractual licence after his/her death on the same terms as above. Similarly, the Buddhist successor may designate a Buddhist successor to hold personally the contractual licence after his/her death on the same terms as above. This Agreement shall automatically terminate upon the death of the last aforesaid Buddhist successor. Accordingly, under this Agreement the said “1^st Defendant” includes the 1^st Defendant and her Buddhist successor and the subsequent Buddhist successors who are, as provided in this Clause, appointed with confirmation in writing.

(2) The Plaintiff consents to give the 1^st Defendant, her visitors and the worshippers an irrevocable right of way over the road marked in yellow in Appendix 1 (“Yellow Road”), during the residue of the term of the existing Government Lease, with clear and unimpeded access from Fu Yung Shan Road to the above licensed land, 24 hours a day and 365 days a year.

…

(14) Both parties agree that during the entire subsisting period of the right of way granted under clause (2) of this agreement, the existing road sign(s) and gate(s) in relation to Guan Yin Grotto along the Yellow Road shall remain unchanged.  The 1^st Defendant shall be responsible and pay for the reasonable maintenance and repair of the said road sign(s) and gate(s). ...”

7.The Yellow Road is an access road that leads from a public road up the slope to the Grotto.  Near the beginning of the Yellow Road there is an archway inscribed with the name of the Grotto.  The first part of the Yellow Road, which goes up to a building known as Rev Yung Chau Memorial Hall (融秋老和尚紀念堂) (“Memorial Hall”) and accounts for about three-fifths of its length, is wide enough for vehicles to come and go. There is at least one street light installed by the Highways Department there, on the basis it is a road open to public.  Beyond the Memorial Hall the Yellow Road narrows into a footpath, with steps along the way, that leads eventually to the Grotto.  It appears that the entire Yellow Road is close to 200m long on a rough estimate.  For ease of understanding a copy of the plan attached to the Agreement is appended to this decision.

8.The parties were apparently at peace after entering into the Agreement until 2018.  In March 2018, the plaintiff began to place bollards and concrete blocks at a point in the first part of the Yellow Road, blocking vehicular traffic.  On 6 April 2018, the 1^st defendant applied by summons in the underlying action (HCA 10388/2000) for interim relief to restrain the plaintiff from obstructing the road.  On 13 April 2018, B Chu J adjourned the 1^st defendant’s summons indefinitely upon the plaintiff undertaking that any person would be given access through the road provided the person registers with the plaintiff his or her name and the capacity in which access is sought and signs on the register.

9.In December 2018 the plaintiff set up a boom barrier gate in the first part of the Yellow Road near the incinerator.  The boom barrier was locked and the plaintiff controlled the key.  The effect was to prevent vehicles but not pedestrians to pass through.  On 6 February 2019, the plaintiff caused notices to be placed on vehicles parked on the Yellow Road, warning that access to the road would be restricted with effect from 1 March 2019 and parked vehicles would be clamped or towed away.

10.In these circumstances, on 13 February 2019, another Buddhist monk kwown as 釋照月 (transliteration “Sik Chiu Yuet”), to whom the 1^st defendant has handed over the management of the Grotto, took out the present summons as the Buddhist successor and representative of the 1^st defendant, seeking the court’s directions and interpretation of clause 2 of the Agreement (“interpretation summons”).

11.Since June 2019, the plaintiff has installed an electrical boom barrier gate on the Yellow Road and implemented a system requiring registration before any person would be allowed passage.

12.On 25 June 2019, the 1^st defendant took out a further summons in the action (HCA 10388/2000) seeking injunctive relief against the plaintiff to restrain any obstruction of the Yellow Road.  On 23 August 2019, Lisa Wong J adjourned the hearing of that summons pending the determination of the interpretation summons, upon certain undertakings given by the parties.

13.On the interpretation summons which is now before me, the 1^st defendant and Sik Chiu Yuet contend that they and visitors and worshippers of the Grotto are by virtue of the Agreement entitled to have unimpeded passage, including vehicular passage, through the Yellow Road, and also to have their cars parked there, at least towards the end of the vehicular portion near the Memorial Hall.  In contrast, the plaintiff contends that the Agreement only confers a licence for pedestrian access and that those going to the Grotto have no right to drive or park any vehicle up the Yellow Road.

Standing of Sik Chiu Yuet

14.On behalf of the plaintiff, Mr Chong took issue with the standing of Sik Chiu Yuet in these proceedings.  Clause 1 of the Agreement states that the irrevocable licence would be held by the Buddhist successor of the 1^st defendant after her death.  While it appears that the 1^st defendant has since 2017 handed over the management of the Grotto to Sik Chiu Yuet, since she is still living, regardless of the status of Sik Chiu Yuet under Buddhist doctrines or the constitution of the Grotto, it does not seem to me that he can be said to have succeeded to the licence as its legal holder or to have become the “1^st defendant” as defined in the Agreement.  That was also the view of Lisa Wong J expressed in 釋照月v Secretary for Justice and Others [2017] 4 HKLRD 803, at §44.[2]

15.It is clear, however, that the summons has the authority of the 1^st defendant. Not only did she make an affirmation dated 2 July 2019 in support of the summons and in reply to the plaintiff’s affirmation, but she also appeared at the hearing before me together with Sik Chiu Yuet.  Specifically, both of them confirmed they were content to be regarded as applicants and to be bound by the outcome and any costs orders that may be made. 

16.In these circumstances I decline to dismiss the interpretation summons on the technical ground that it is stated to have been taken out by Sik Chiu Yuet as the 1^st defendant’s representative.  At the hearing Sik Chiu Yuet made submissions and the 1^st defendant adopted them with minor additions.  They should be taken as joint applicants making essentially the same application and submissions.  There does not seem to me to be any need to distinguish between them.

Vehicular access

17.The scope of the irrevocable licence is a question of construction of the Agreement by which it was granted, having regard to the circumstances surrounding its execution.  As stated above, the Agreement was entered into in October 2006 as a compromise of the litigation between essentially the Temple and the Grotto.  Long before that, the first part of the Yellow Road was already a paved road wide enough for vehicles to travel. The evidence was that it was the monk in charge of the Grotto (Sik Lun Cham) who in 1959 to 1960 caused it to be paved with certain stone tiles and an entrance archway for the Grotto to be erected there.  It appears that further improvement works were done to the road in subsequent years and, by the 1980s, it had become a concrete-paved road.  In 1997, when the Temple obtained building permission for the construction of its Hall of 500 Arhats, the Yellow Road served the purpose of providing vehicular run-in/run-out and space for manoeuvring of vehicles, as well as emergency vehicular access (“EVA”).  As at 2006, the first part of the Yellow Road was a road for vehicles, while it could of course also be used for walking.

18.The Yellow Road has been the only way for vehicles to go up the hill near the area where the Grotto and other Buddhist establishments are located, even though the vehicular passage does not extend all the way to the Grotto itself.  Even before 2006, the vehicles of the Grotto, its visitors and worshippers had been going up and down the Yellow Road.  The plaintiff’s assertion that the 1^st defendant herself had never driven or parked a vehicle on that road,[3] even if accepted, is immaterial.

19.It seems to me that the purpose of the grant of the irrevocable licence is to permit occupiers, visitors and worshippers of the Grotto to have access including vehicular access as far as the Yellow Road permits.  The first part of the road was built for vehicles and in my view a grant of a right of way over it should be presumed to cover the use of vehicles: Cannon v Villars (1878) 8 Ch D 415, 420.  There are no limiting words in clause 2 or elsewhere in the Agreement to exclude vehicular traffic.

20.In St Edmundsbury and Ipswich Diocesan Board of Finance v Clark [1973] 3 All ER 902, 923e, Megarry J stated that:

“ … there can be little doubt that a grant of a right of way simpliciter, making no reference to being confined to foot passengers or being extended to vehicles, will prima facie be construed as being a general right which includes vehicles.”

This was applied by the Court of Appeal in Secretary for Justice v Wisename Ltd [1998] 1 HKC 128, 137, per Liu JA.  Also, in that case, Chan CJHC accepted as correct the statement (at p 140H) that:

“ It is for the court to put the true construction upon the words used in the grant, guided, in the absence of any clear indication of the intention of the parties, by the maxim that a grant must be construed most strongly against the grantor.”

Applying these principles, his Lordship stated (at p 142C-D) that the burden was on the grantor in that case to show that the right of way was restricted in use in any particular way, and that in the absence of any express or implied restriction, the right of way in question was a general right of way. 

21.Although these cases concern the grant of a right of way in the nature of an easement whereas the relevant right in the present case is expressed as an irrevocable contractual licence, the approach of construction is in my view not fundamentally different.

22.Mr Chong emphasised that the Grotto could not be reached directly by vehicles, as the second part of the Yellow Road is a footpath.  In my view, however, this does not mean the parties did not intend to allow vehicles to go up the road as far as its conditions permit in order to obtain access to the Grotto.  On the contrary, if it was intended by the parties in October 2006 that all persons including those carrying goods and supplies for the Grotto and weak and elderly persons must henceforth, at the entrance of the Yellow Road, alight any vehicle they were using and walk a significant distance up the vehicular road all the way to the Memorial Hall before embarking on the footpath, one would have expected them to state that clearly and explicitly in the Agreement.  There is in fact no such limitation. Instead, clause 2 simply states that the 1^st defendant, visitors and worshippers are given a right of way to enable them to have clear and unimpeded access from Fu Yung Shan Road to the Grotto at all times (以…「黃色道路」…每年365日全日24小時暢通無阻地由芙蓉山道前往上述許可土地).  This is the language of a general right and I see no basis to construe it so as to restrict it solely to pedestrian use.  Further, Fu Yung Shan Road (芙蓉山道), from which the licensed right of way extends, is a public vehicular road.  It seems to me to be an important part of the clause that there is to be no impediment for one to go (whether in a vehicle or on foot) from Fu Yung Shan Road on to the Yellow Road.

23.The plaintiff also relies on the fact that a section of the first part of the Yellow Road (a 110m-long section that runs approximately from a point 40m up from Fu Yung Shan Road to the Hall of 500 Arhats — near the lower pond on the plan appended) serves as the EVA for the Hall of 500 Arhats.  In my opinion this does not conflict with the grant of a vehicular right of way over the Yellow Road including the portion that serves as EVA.  Section 41D(1) of the Building (Planning) Regulations (Cap 123F) requires that every building shall be provided with an EVA which is so designed and constructed as to allow safe and unobstructed access of a vehicle of the Fire Services Department to the building, and to provide for the safe operation of such a vehicle in the event of a fire or other emergency.  Section 29A of the Buildings Ordinance (Cap 123) imposes an obligation on the owner to maintain an EVA in good order.  These provisions, however, do not preclude a road that serves as an EVA from being used by other vehicles for passage.  Parking of vehicles such as to obstruct an EVA raises different considerations and is dealt with below. 

24.In my view, therefore, the right of way granted under clause 2 of the Agreement includes both pedestrian and vehicular passage.  This must obviously and by necessity include the right to stop on the Yellow Road in order to turn vehicles and to load and unload goods and passengers.

25.I should mention that the 1^st defendant also relied upon certain conditions in the successive Government leases covering, inter alia, the Land.  These conditions do not seem to me to be relevant to the issues in this case.  For example, special condition 9(d) of New Grant No 4951 dated 25 May 1971 (by which Lot No 1255 in Demarcation District 453 was granted to the plaintiff by way of an exchange for certain old lots surrendered) refers to certain areas possession of which was granted to the plaintiff for the purpose of formation only, and provides that the plaintiff, while in possession, shall allow free passage over and along those areas for vehicular and pedestrian traffic.  As special condition 9(b) and (d) make clear, these areas were re-delivered to and retained by the Government upon completion.

26.The right of way, so construed, does not necessarily prevent the plaintiff from installing any form of gate whatsoever across the Yellow Road.  The test seems to be whether the right of way is substantially interfered with by an obstacle placed on it.  In West v Sharp (1999) 79 P & CR 327 at 332, Mummery LJ said: “There is no actionable interference with a right of way if it can be substantially and practically exercised as conveniently after as before the alleged obstruction”.  The 1^st defendant and Sik Chiu Yuet accepted in their oral submissions that a gate that could be manually opened by the road user might not be a substantial interference with the exercise of the right of way, referring to Page v Convoy Investments Ltd [2015] EWCA Civ 1061, at para 46.  An electrical gate may however raise different questions.  In Page, an electronic gate that could be opened by the use of a fob or a four-digit code was held to be a substantial interference with the exercise of the right of way (even though the fob and the code had been offered to the owner of the dominant tenement): see paras 15-17, 24.  In contrast, in Kingsgate Development Projects Ltd v Jordan [2017] EWHC 343 (TCC), an electrical gate that opened at the push of a button at the gate was held not to constitute a substantial interference with the right of way: see paras 72-79.

27.Precisely what kind of gate the plaintiff has installed on the Yellow Road and how it is operated and the extent of its interference with the right of way are not questions that are placed squarely before this court on the interpretation summons, and I need not dwell on them.

Parking of vehicles

28.The 1^st defendant and Sik Chiu Yuet submitted that the irrevocable licence also permits the users to park their vehicles on the Yellow Road, at any rate at the end of the first part of it near the Memorial Hall.  Admittedly the Agreement grants a “right of way” (通道權) and does not expressly confer any right to park vehicles along the way.  But a right to park vehicles can in special circumstances arise by implication.

29.In Moncrieff v Jamieson [2007] 1 WLR 2620, the dominant tenement, on which a dwelling house stood, enjoyed a right of way, which covered both pedestrian and vehicle traffic, over the adjacent servient tenement.  The dwelling house lay on grounds between the foot of a steep escarpment and the foreshore which were accessible only from the servient tenement on foot via a stairway.  Vehicles could not be driven on to any part of the dominant tenement.  The dominant tenement used to form part of the lands held by the defender but when it was separately disposed of in 1973, “a right of access from the branch public road”, being right of way through the servient tenement, was granted.  A dispute had arisen as to whether the owners of the dominant tenement had a right to park vehicles on the servient tenement near the border.  The House of Lords held that a servitude right to park was capable of being constituted as ancillary to a servitude right of vehicle access, and would be implied where it was necessary for the comfortable use and enjoyment of the servitude.  Lord Hope stated (at para 29):

“ … In Jones v Pritchard [1908] 1 Ch 630, 638 Parker J said that the grant of an easement is prima facie also the grant of such ancillary rights as are reasonably necessary to its exercise and enjoyment. Cusine and Paisley, Servitudes and Rights of Way (1998), para 12.124 accept this observation as a statement of the position in Scots law too. … The question is whether the ancillary right is necessary for the comfortable use and enjoyment of the servitude. The use of the words ‘necessary’ and ‘comfortable’ strikes the right balance between the interests of the servient and the dominant proprietors.”

30.On the facts of that case, Lord Scott said (at para 52):

“ … it is obvious from the geography that the vehicular right of access cannot be enjoyed without the right to park on the servient land at or near the Da Store gate. It is not that it would be difficult to take a vehicle on to the Da Store land; it would simply not be possible. The appellants have accepted that it is permissible for vehicles to park temporarily on the servient land for the purpose of unloading goods or allowing passengers to alight, or, vice versa, for the purpose of loading vehicles or allowing passengers to enter the vehicles. But a vehicle driver who lives at Da Store is not entitled, it is insisted, to leave the vehicle at or around the Da Store gate but, instead, after unloading any goods and/or passengers at the Da Store gate, must drive back to the Sandsound branch road, leave the vehicle there and walk back to Da Store. If he or she is accompanied by small children who cannot be left alone, they must perforce accompany the driver. If that is what the driver has to do, it cannot be said that he is exercising a right of vehicular access. It seems to me, with all respect to the arguments addressed to your Lordships by counsel for the appellants, plain that the grant of a right to have vehicular access to Da Store must have contemplated that the vehicles by means of which access was obtained by those living at Da Store would have to be left parked at or near the Da Store gate until they were next needed and, accordingly, that a right of parking must accompany the right of vehicular access. Authority for this conclusion is to be found both in Scottish and in English case law (see the cases cited by my noble and learned friend Lord Neuberger of Abbotsbury in paragraphs 108 and 110 of his opinion) but the conclusion is one that, in the absence of any previous authority, would anyway be impelled by the obvious answer to what the parties must, if they had thought about it, have had in mind as to the manner of exercise of a vehicular right of access to dominant land used, or intended for use, for domestic, residential purposes but on to which it would be impossible to take a vehicle.”

31.Although Moncrieff v Jamieson was an appeal from the Court of Session based on the law of Scotland on servitudes, in my view it is illuminating for the purpose of the present case.  There does not appear to be any material difference on the issues before the House between Scots law and English common law with which Hong Kong law shares the same roots and much similarity.  Indeed, Lord Scott stated that there seemed to him “no difference relevant to any issue that [arose in that case] between the common law in England and Wales relating to easements and the common law in Scotland relating to servitudes” (para 45; see also para 111 per Lord Neuberger).

32.Furthermore, as Lord Neuberger stated (at paras 112 & 113), the cases where a right is implied where it is necessary for the comfortable enjoyment of the hereditament which is severed and where a right is implied because it is reasonably necessary for the exercise or enjoyment of an expressly granted right are:

“ no more than examples of the application of a general and well established principle which applies to contracts, whether relating to grants of land or other arrangements. That principle is that the law will imply a term into a contract, where, in the light of the terms of the contract and the facts known to the parties at the time of the contract, such a term would have been regarded as reasonably necessary or obvious to the parties.”

This is significant for present purposes since the right of way over the Yellow Road is conferred by way of an irrevocable contractual licence.

33.In the present case, the topography as already described is such that no vehicles can be driven to the Grotto, which is accessed via a footpath that forms the last section of the Yellow Road.  The vehicles that are driven up to the point where the Yellow Road becomes a footpath, if not stationed there, will have to turn round, descend the road and leave.  If there was no ancillary right to park, a resident of the Grotto who drove there would have to unload any goods or passengers, including elderly monks and nuns, leaving them unattended near the Memorial Hall, then drive the car down the Yellow Road, leave the car at a place where it could be parked, and then walk back to the archway entrance, up the first part of the Yellow Road, and pick up the goods and passengers left there before walking on the footpath to the Grotto.  If this is the position, then, as Lord Scott said in Moncrieff in the passage quoted above, it cannot be said that such a person is exercising a right of vehicular access, and, as Lord Hope said (at paras 33-34), the right of vehicular access would be enjoyed by tradesmen going there to make delivery, but not by those living in the Grotto when using their own vehicles; it would mean that their right of vehicular access would effectively be defeated.

34.It seems to me that the Agreement must have contemplated that the vehicles of those who live in the Grotto by which they exercise the right of vehicular access granted by the licence would have to be left parked at the end of the first part of the Yellow Road in front of the Memorial Hall.  This ancillary right seems to me to be reasonably necessary for the enjoyment, in the way contemplated by the parties, of the right of access that they are granted under the Agreement.[4] 

35.There are, however, three important qualifications.  First, while in Moncrieff it was held that the right to park extended to guests and visitors,[5] in the circumstances of Hong Kong I do not think it can be said to be reasonably necessary for an ancillary right to park to exist before visitors of the Grotto can enjoy their right of vehicular access.  Even if parking is not possible, they may still have access through taxis or by being driven and dropped off there.  There are many places in Hong Kong with vehicular access but no parking place for visitors. Further, while the dominant tenement in Moncrieff was a private dwelling for a single family, the Grotto is a Buddhist establishment which may be attended by a large number of visitors and believers on special occasions.  It is not obvious that the Agreement would have contemplated not only that all such visitors should be able to come by motor vehicle but that they should also be entitled to park their cars along the Yellow Road.  The first qualification is therefore that the right to park is limited to the residents of the Grotto.

36.Secondly, and in any event, as mentioned above, part of the Yellow Road (a 110m-long section) serves as the EVA for the Hall of 500 Arhats.  In entering into the Agreement, it seems to me that the parties could not have intended that the grant and subsequent exercise of the right of way would result in the obstruction of the EVA, for this would be contrary to the plaintiff’s statutory obligation under the Buildings Ordinance.  Parking of vehicles along this stretch of the road would not have been contemplated by the Agreement.  The ancillary right to park does not extend to any part of the EVA. 

37.Thirdly, as recognised by the House of Lords in Moncrieff (both under Scots law and English law), a servitude (or easement) and its ancillary rights have to be exercised reasonably and without undue interference with the servient owner’s enjoyment of his own land: see paras 39, 45, 53, 62, 63(d).  (In that case Lord Neuberger contemplated that the parking would be limited to two or three vehicles: see para 145; see also per Lord Hope at paras 37-40.)  The same principle must in my view apply to an implied right to park arising from a licence for vehicular access in an agreement between neighbours in a case such as the present.  Here, parts of the Yellow Road (especially beyond the EVA) are relatively narrow although it widens at the end in front of the Memorial Hall.  It would be inconsistent with the use of the Yellow Road as a road if vehicles are parked there in such a way that renders it impossible for others to use the road.  This may mean in practice that the space that could properly be used for parking would be limited to a very few vehicles at the end of the vehicular part of the Yellow Road, but this would be a limitation arising from the inherent conditions of the area and the need to maintain the road as such not only for the Grotto but also for the plaintiff.

38.Thus construed, it seems to me the above conclusion gives recognition to the requirement that the implied right should be “reasonably necessary”.  As Lord Neuberger said in Moncrieff at para 112, “Without the necessity, there would be the danger of imposing an uncovenanted burden on the servient owner, based on little more than sympathy for the dominant owner; without the reasonableness, there would be a danger of imposing an unrealistically high hurdle for the dominant owner”.  Accordingly, subject to these qualifications, I would hold that the Agreement, on its proper construction, confers the right to park motor vehicles on residents of the Grotto.

Conclusion

39.For the above reasons, I have come to the conclusion that:

(1) The right of way granted under clause 2 of the Agreement includes the right of vehicular access.  This includes the right to stop vehicles in order to turn them round and to load or unload goods or passengers.  The plaintiff is therefore obliged under the Agreement to keep the Yellow Road clear and free from obstruction for both pedestrian and vehicular access.

(2) The right of way granted under clause 2 of the Agreement includes the right to park vehicles near the end of the vehicular section of the Yellow Road but (a) this is limited to the residents of the Grotto; (b) there is no right to park vehicles on any part of the Yellow Road that forms the EVA for the Hall of 500 Arhats; and (c) vehicles must not be parked such as to block the road.  This may mean in practice that only a very few vehicles may be parked at the end of the vehicular part of the Yellow Road, in front of the Memorial Hall.

40.There will be liberty to apply.

41.Given that the parties have each succeeded in certain respects, I would make an order nisi that there be no order as to costs.

42.I should record that by a very late summons, the plaintiff sought to adduce in evidence an expert surveyor’s report.  Upon objection from the 1^st defendant, however, the plaintiff indicated it would not pursue its summons, which I gave leave to be withdrawn with costs to the 1^st defendant.  Sik Chiu Yuet’s affirmation hurriedly made in opposition to the report is therefore also not admitted.

43.It is unfortunate that the Agreement which was entered into to end the litigation between the parties has now given rise to further litigation.  As Arden LJ observed in Waterman v Boyle [2009] EWCA Civ 115 at para 40, “The law expects neighbours to show some give and take towards each other”.  One hopes that the Temple and the Grotto, both being Buddhist institutions sharing the same beliefs, will bear this in mind for the future.

Mr KM Chong and Ms Vivian Li, instructed by KC Ho & Fong, for the Plaintiff

The 1^st Defendant and Sik Chiu Yuet were not represented and appeared in person

The 2^nd Defendant was absent

Appendix 1