A right of way benefits specific land. However, can a right of way also be used for the benefit of neighbouring land? This was one of the issues before the Court of Appeal in the recent case of Gore v. Naheed [2017] EWCA Civ 369, the outcome of which suggests that, in some circumstances, it can.

Background

Mr Gore owned a property called the Granary. The Granary enjoyed a right of access, granted by a 1921 conveyance, "to go and return along and over the private entrance road or way coloured yellow … for all purposes connected with the use and occupation of the Granary". This right of access was, in part, over the neighbouring property owned by the Naheeds.

In addition to using the driveway to gain access to the Granary, Mr Gore used it to gain access to an adjacent garage.

Unfortunately access to both the Granary and the garage was frequently obstructed by vehicles delivering goods to the Naheeds' premises and a dispute arose as to the extent of the easement granted by the 1921 conveyance. Was it sufficiently wide to accommodate direct access to both the Granary and the garage?

At first instance the court held that it was. The Naheeds appealed to the Court of Appeal.

Decision

The Court of Appeal held that Mr Gore's use of his garage was ancillary to the enjoyment and use of the Granary. Consequently the easement granted by the 1921 conveyance was wide enough to include direct access to the garage for parking in connection with the residential use of the Granary. This is because the right of access was for "all purposes connected with the use and occupation of the Granary".

The court emphasised that:

  • the decision turned on the true construction of the 1921 conveyance; and
  • the decision may have been different if the garage were let to or used by a third party separately from the occupation of the Granary (because then its use would not be ancillary to the Granary).

Commentary

This decision is a reminder that the extent of an easement will turn on the true construction of the terms of its grant. Depending on the drafting and the factual background, an easement granted for the benefit of a particular plot of land may also be used for the benefit of neighbouring or nearby land.