In the recent case of Gore v Naheed and Another  EWCA Civ 369, the Court of Appeal considered the extent to which a right of way benefiting one property could be used to gain access to adjoining land which did not have the express benefit of the easement. The Court confirmed that in certain circumstances it is possible for an easement to be used in that manner.
Gore owned a property called the Granary and an adjoining garage. The Granary had the benefit of a right of way to the street over a driveway, part of which was owned by the neighbours, by virtue of a 1921 conveyance. The conveyance granted a right to "go and return along and over [the driveway and garage land] for all purposes connected with the use and occupation of the [Granary] but not further or otherwise".
Gore used the driveway to gain access to the Granary and with a view to parking in the garage. However, vehicular access to the Granary and the garage was obstructed on a number of occasions by their neighbours who used the driveway for deliveries to their premises.
A dispute arose between the parties as to the extent of Gore's right of way over the driveway. It was accepted that the easement entitled Gore to drive a vehicle to the front door of the Granary and to park there for the purpose of loading and unloading. It was also accepted that Gore was entitled to drive to the garage and to park there temporarily for the purpose of loading and unloading. However, it was disputed that Gore had a right to use the driveway to obtain direct access to the garage for the purpose of leaving a car parked there indefinitely.
At first instance, the Judge made a declaration that the rights granted by the 1921 conveyance included the right for Gore to pass over the driveway for the purpose of parking in the garage. The Judge also granted an injunction in terms which prevented obstruction of vehicular access to the garage, but provided that parking of a vehicle by the neighbours on their part of the driveway for up to 20 minutes for the purpose of loading and unloading would not amount to an obstruction. He further awarded Gore general and special damages and costs even though Gore had not claimed damages. The neighbours appealed.
The Court of Appeal upheld the Judge's decision and agreed that the use of the garage was ancillary to the use of the Granary. Parking in the garage by a resident of the Granary should not be treated as the use of the garage in its own right for a purpose independent of the use of the Granary. The ancillary use fell within the scope of the grant in this case and the easement was wide enough to include direct access to the garage for parking in connection with the residential use of the Granary.
However, the Court stressed that the position would have been different if the garage was let to or used by a third party separately from the occupation of the Granary.
The Court of Appeal also considered whether the first instance Judge was entitled to award general damages of his own volition. The Court held that, given that no claim for general and special damages had either been pleaded or advanced at the trial, that award could not stand and the appeal in respect of that part of the Judge's order would be allowed.
This decision reaffirms that the extent of an easement will depend upon its true construction and confirms that, depending upon the drafting of the grant and its factual context, it is possible for an easement granted for the benefit of one parcel of land to be used in connection with an adjoining parcel of land in circumstances where the benefit given to the adjoining parcel is ancillary to the use of the dominant land.
The Court of Appeal also helpfully confirmed that there was no significance to the distinction sometimes argued between the words "passing through" and "passing alongside".
It is very difficult to anticipate what might change in the future so as to cover all possibilities when negotiating and drafting an easement.
This article first appeared in our Real Estate Bulletin - January 2018.