40.— (1) The rule known as the Rule in Wheeldon v. Burrows is abolished and replaced by subsection (2).

(2) Where the owner of land disposes of part of it or all of it in parts, the disposition creates by way of implication for the benefit of such part or parts any easement over the part retained, or other part or parts simultaneously disposed of, which—

(a) is necessary to the reasonable enjoyment of the part disposed of, and

(b) was reasonable for the parties, or would have been if they had adverted to the matter, to assume at the date the disposition took effect as being included in it.

(3) This section does not otherwise affect—

(a) easements arising by implication as easements of necessity or in order to give effect to the common intention of the parties to the disposition,

(b) the operation of the doctrine of non-derogation from grant.