The conveyance by which the land was sold contained no express right of way across the retained land to reach the adjoining land. The owner of the retained land argued that no right of way could arise as any implied right must be limited to what was strictly 'necessary'. Vehicles could have accessed the adjoining land from the highway if a workshop was demolished. There was also a pedestrian right of way to the adjoining land. Technically, therefore, the adjoining land was not landlocked. Hart J rejected this, saying that in modern times it is in reality necessary for people to be able to access their land by vehicles and not simply by foot, so that implication by necessity can extend to a case such as this. (CA upheld his decision on a different basis-proprietary estoppel- and declined to comment on this point).
Hart J: The ability to destroy a physical barrier so as to allow vehicular access and the presence of a footpath do not preclude the finding that the land is landlocked for the purposes of implying an easement due to necessity. He bases the doctrine on necessity for ‘reasonable enjoyment’ of the property, unlike the ‘intentions’ test in Nickerson.