Giles v Tarry  EWCA Civ. 837 (21/6/12)
Yet again, the infamous ‘rule in Harris v Flower’ has come before the higher courts of the land:
“If a right of way be granted for the enjoyment of Close A, the grantee, because he owns or acquires Close B, cannot use the way in substance for passing over Close A to Close B” (Romer LJ, Harris v Flower, (1904) 74 LJ Ch. 127, 132 ).
I wrote an article for this newsletter as long ago as 2003, stating:
“So if, as in Harris itself, the user of the right of way is in fact and in substance using it ultimately to get to and use other land - either a wholly different parcel or e.g. a building situated partly on the dominant land and partly on the other land - he is going beyond the bounds of the grant, and commits a trespass on the right of way when he uses it for this purpose.
This ‘rule’ has been repeatedly confirmed by the courts, recently so in both Peacock v Custins  2 AER 827 and Das v Linden Mews Limited  EWCA Civ. 590. In Peacock, a farmer owned two fi elds which he farmed together, but only one of the fi elds had the benefi t of a right of way over neighbouring land. It was held that he could not use the way for what was in substance access to both fi elds. In Das, it was held that owners of a mews house which had the benefi t of a right of way over a private road could not use the road so as to pass to and from some additional car parking land which they had acquired near their house.
The thorny issue is whether there exists an exceptional category of use of additional land merely “ancillary” to use of the dominant tenement. In Peacock, the Court of Appeal appeared to think that it might be all right if the dominant landowner used the right of way to get to his dominant land, then toddled across to his adjacent land for a picnic [p90k per Schiemann LJ].....”
Giles v Tarry brought some of the diffi culties, and potential absurdities, of the rule into sharp focus. G and T had been in a state of “virtual war”, and in litigation, for a number of years. It was, however, accepted on all sides that T’s right of way over G’s lane was to be exercised for the benefi t only of T’s “Paddock”, and not to a further separately acquired parcel, “the Green Land”. T had expressly undertaken in a 1995 compromise not to use the way “for the purpose of gaining access to the Green Land”.
T came up with a clever idea. He would proceed, and drive his sheep, along the right of way into the Paddock. He (and the sheep) would then exit the Paddock, out of a gate onto an adjacent public highway. There they would briefl y tarry (sorry), before going back from that highway into the Paddock, and from thence to the adjoining Green Land.
Was that not, therefore, a series of separate journeys – the fi rst a permissible use of the private right of way to get to the Paddock, the next a legitimate exit onto an adjacent highway, and fi nally a journey from that highway (and not, therefore, an exercise of the private right of way) onto the Paddock then the Green Land?
The trial judge thought so, although the trial was conducted by the parties in person without the benefi t of full citation of authority. Although it was “clearly a somewhat artifi cial device or expedient” and “the objective of [T] has been to graze his sheep both on the paddock and the adjacent green land”, nevertheless “Usage of a right of way must be analysed in terms of actual movement, not the ultimate intention of the user”.
The Court of Appeal, addressed by counsel for both parties, disagreed. Harris v Flower and its successor cases remained good law unless and until overturned by the Supreme Court or Parliament. In all those cases, the test was expressed using words and phrases such as “in substance”, “colourable use”, “bona fi de use”, the “essential purpose” of the use, and the “reality of the case”. On the judge’s fi ndings here as to T’s “objective” and the “artificial” device adopted to achieve it, he could not have reached the conclusion he did:
“.....we are dealing with one continuous operation, the object of which as the judge found, is to enable the sheep to graze the green land via the right of way. The use of the highway as a transient stopover is itself a “colourable” use of the highway. The whole sequence is, as the judge found, an artifi cial device. It therefore falls foul of the principle in Harris v Flower.” (per Lewison LJ, paragraph 57).
As G.C. Seabourne and I argued in another article [(2003) Conv. 127], to which Lewison LJ referred in his judgment, unless the dominant owner has some other means of access to his additional land, such land may be landlocked save via genuinely “spontaneous” and unplanned excursions (e.g. for picnics) to it from the dominant land, the intention behind which is only formed after the right of way has first been used to get to that dominant land! In Giles v Tarry, while Norris J eschewed any invitation to consider further possibilities or questions other than those arising on the facts as found, Lewison LJ suggested at least two other means by which T could achieve his “objective”. One was to use the public highway alone to get to the Paddock (and from there enter the Green Land). The other would be “...to ensure that the sheep are turned onto the paddock to graze it first before proceeding on to the green land” although “That might necessitate the erection of some gated barrier between the paddock and the green land..”. It is not wholly clear why, even if the journey was broken by a spell of grazing on the paddock, this would not equally fall foul of Harris v Flower if there was always an intention ultimately to proceed later to the Green Land. Perhaps the idea would be to leave it to the sheep to wander in there themselves if they so chose...