Last Orders at the Wine Shop - Park Responsibly!

Graham Gore -v- Kishwar Naheed and Asim Suhail Ahmed [2017] EWCA Civ 369 – Court of Appeal

Summary

The Court of Appeal has found that an easement benefitting the Claimant included the right to access a garage on other land owned by the Defendant, even though it had not been in the ownership of the relevant parties when the easement was granted originally.

This was due to the wording of this particular easement. The case is a useful reminder of how the Courts will approach interpreting deeds - and that the result may not always be what a landowner assumes.

The facts

The Claimant owned a property known as “the Granary”. The Defendants owned part of an adjacent driveway that gave vehicular access to the front door of the Granary. The driveway also served the rear of the Defendants’ property, which traded as a wine shop. The Defendants used the driveway for deliveries to the shop.

Originally the driveway had included another piece of land adjoining the Granary. However, the previous owners of the Granary had obtained title to this additional land by adverse possession, and had built a garage upon it (“the Garage”).

The driveway itself was quite confined, and deliveries to the Defendants’ wine shop were obstructing access to both the Granary and the Garage. The Claimant therefore sought an injunction preventing the Defendants from obstructing the driveway and damages.

In response, the Defendants accepted that the Claimant was entitled to drive a car to the front door of the Granary and to park there on a temporary basis for loading/unloading. However, they disputed the Claimant’s right to use the driveway to obtain access to the Garage for the purposes of parking a car for an indefinite period of time.

The law

Disputes often arise where the benefitting land is enlarged or its use altered in a way that increases the actual use of the right of way. The question then arises as to whether the easement can still be enjoyed for the new land or different use.

Case law demonstrates that the proper approach is to consider the exact terms of the easement and then decide whether the current use is permitted. However, this is easier said than done, and the case law is difficult to reconcile.

In the past, Courts have granted injunctions where the use of a right of way has intensified and, therefore, become more of a burden, or where the benefitting land has been expanded to accommodate other buildings. However, the Courts have also permitted such intensification of use where the extended land was merely ancillary to the original land which was granted the benefit of the easement.

Against this conflicting background it is perhaps unsurprising that this case ended up in the Court of Appeal.

The arguments

The Defendants relied on the Court of Appeal case of Harris v Flower [1904] and the House of Lords in the Scottish Appeal of Alvis v Harrison [1991]. Both cases supported the view that a right of way only benefitted the original land and was not capable of being extended to other land. The Defendants argued that this meant the driveway could only be used for the purposes of vehicular access to the Granary and not to the new adjoining Garage, because the Garage had not formed part of the benefitting land when the right was granted.

This was consistent with a more recent Court of Appeal case, Das v Linden Mews [2003] 2 P & CR 4, which concerned whether or not a right to load and unload a vehicle in front of a house also extended to the right to enter adjoining land, for which an opening had been made, in order to park the car on that adjoining land. In that case, the Court found that no such right existed.

In response, the Claimant relied on the case of National Trust v White [1987] 1 WLR 907. In that case, the National Trust enjoyed a right of way over a track for the purposes of accessing the Figsbury Ring – a National Trust venue. Due to parking problems on the track, the National Trust leased further land for car parking which was also accessed from the same track. However, the car park was opposite the venue and was not physically attached to it. Despite this, the Court held that the track could also be used for accessing the car park, as its enjoyment was ancillary to the activities being carried on at the Figsbury Ring and was not being used for purposes such as holding picnics or other activities.

Relying on this case, the Claimant argued that he was entitled to the benefit of the easement to access the adjoining land of the Granary as it was ancillary to the use of the Granary.

The decision

At first instance, the Court had agreed with the Claimant.

The Court of Appeal upheld this decision and confirmed that the Claimant could use the driveway to access the Garage even though it had not formed part of the Granary at the time of the grant.

It is clear from the judgement that what was different between the various authorities was the precise wording of the grant. In this case, the right was worded very broadly to be:

… “for all purposes connected with the use and occupation of the said granary” …

This contrasted with the Das case, where the right was more restricted as a:

… “right to halt a single vehicle immediately adjacent to their respective properties for the purposes of loading and unloading the said vehicles.” …

The Court decided that the use of the Garage was ancillary to the use and enjoyment of the Granary. However, the Court stressed that it would be different if the Garage was let or used by a third party separately from the occupation of the Granary.

The Court of Appeal also upheld the first judge’s decision that a temporary obstruction by the Defendants of 20 minutes for the purposes of loading and unloading would not constitute a nuisance to the Claimant. The Defendants had sought to increase that period to two hours, but this was rejected by the Court of Appeal.

Our comments

This case is a reminder that Courts will look at the specific wording of easements when a question of interpretation arises rather than developing principles of how they should be restricted or extended.

It is important, therefore, to take proper legal advice when acquiring a property with the benefit or burden of an easement in order that there are no nasty surprises later. You should also consider whether there are any existing easements affecting your property and check whether the use has expanded over time. If you leave it too long, the users will obtain prescriptive rights.