A recent case in the Court of Appeal, Gore v Naheed and Another  EWCA Civ 369, has provided a helpful update on the extent to which a right of way in favour of one property could be used to gain access to adjoining land for parking ancillary to the use of the benefitting property. The case has not decided any new principles regarding easements, but has highlighted the extent to which a right may be used to benefit land which would not expressly benefit under the grant.
The dispute centred on the use of a driveway connecting Mr Gore’s property, known as “The Granary”, to Church Road, as shown in green on the plan below (not to scale). Mr Gore argued that he had a right of way to The Granary which also extended to accessing and parking in the garage (grey), as an ancillary use. Mr Naheed, the owner of the yellow land, argued that the use of the garage for parking and the access to this was an independent use to the access to The Granary.
Property Plan - Crown Copyright ©
The Granary enjoys a right of way to Church Road over the yellow land. The granted right was noted as follows:
“TOGETHER with the right for the Purchasers their respective heirs and assigns and others the owners and occupiers of the said granary in common with other persons having similar or greater rights with or without horses or other animals carts or wagons laden or unladen to go and return along and over the private entrance road or way coloured yellow on the said plan for all purposes connected with the use and occupation of the said granary but not further or otherwise.”
What was in dispute was the right of Mr Gore (or a tenant) to use the driveway to obtain direct access to the Garage for the purposes of leaving a car parked there for an indefinite period of time.
The case of Re Ellenborough Park  Ch 131 established the essential characteristics of an easement:
1. There must be a dominant (benefitting) and servient (burdened) land.
2. The easement must accommodate the dominant land.
3. The dominant and servient land must be owned by different persons.
4. The right must be capable of forming the subject matter of a grant.
In other words, the easement should operate for the better enjoyment of the dominant land.
A right of way granted for access to the dominant land cannot be used for access to adjoining land (Harris v Flower (1904) 74 LJ Ch 127). However, it is possible for an easement to be used in connection with land that is not the dominant land where that use is ancillary – which will depend on the circumstances.
The court will interpret the wording of the grant in light of the circumstances and the intention of the parties at the time of the grant.
The Court of Appeal upheld the High Court’s decision that the right of way could be used in order to gain access to the garage for parking as ancillary to the use and occupation of The Granary. The Court did not accept the argument that parking within the garage by a resident of The Granary should be treated as the use of the garage in its own right for a purpose independent of the use of the dominant land. This ancillary use fell, on the facts, within the scope of the original grant.
The Court of Appeal distinguished the case of Harris v Flower, on the basis that the grant in this case was wider than in the case of Harris v Flower. The right to access the garage was ancillary to the use of The Granary. Had the garage been let to another party who did not occupy The Granary then the Court of Appeal’s judgment would have been different.
1. Generally, an easement can only be used for the benefit of the dominant land. An incidental benefit given to other land might be within the scope of the grant of easement, but it is a fact-specific judgement in each matter (proposed use and wording of the grant).
2. Where there has been no dispute about interpretation of the grant with the owner of the burdened land, title indemnity insurance in relation to the ancillary use may offer comfort. The insurer will, however, need to be persuaded that any ambiguity about interpretation resolves in favour of the owners of the benefitting land.
3. If you are negotiating the grant of an easement, care must be taken to ensure that the wording accurately reflects the intended use – now and, so far as it is possible to anticipate, in the distant future.