In the November issue of property update, we considered the Court of Appeal's decision in Risegold v Escala, which concerned the scope of a right of entry onto adjoining property.

In Greatorex v Newman, the Court of Appeal was again faced with ruling on the scope of an easement: in this case, a right of way.

The defendant owned a bar with a beer garden at the rear. The bar fronted onto, and could be accessed from, Bridge Street. However, there was a passage at the rear which led from the road behind the property to the beer garden. The passage, which belonged to the claimant, ran alongside the claimant's neighbouring house. The claimant was concerned by the noise and mess made through the use of the passage by patrons of the pub.

The property comprising the bar and beer garden had the benefit of the following right of way over the passage, which had been reserved on a conveyance of the claimant's property in 1921:

"the right… at all times hereafter with or without horses carts and carriages to pass and repass from and to the said other premises belonging to the said [vendor] as now used by her tenant Edward Collinson".

The lower court ruled that the words "as now used by her tenant Edward Collinson" limited the scope of the right of way to the sort of use made of the passage by Mr Collinson in 1921. Leave to appeal against that decision was refused, but the defendant was permitted to appeal against the trial judge's finding of the nature of that use in 1921.

In 1921 the bar was being used as a fishmongers. The judge held that the passage would not have been used by retail customers of the shop, but would instead have been limited to suppliers, staff and possibly trade customers. The defendant appealed on the basis that the judge did not have sufficient evidence to reach this conclusion.

The Court of Appeal rejected the defendant's arguments. The use issue was one of fact for the trial judge. An appeal court could only intervene if the judge's factual conclusions were shown to be wrong in the sense that no judge could have arrived at them by a process of reasonable and probable inference from the few facts directly established by the evidence. It was a reasonable inference from the established facts that Mr Collinson's retail customers would probably not have gone, or been authorised to go, to the back of the property via the passage. One of the judges went further and stated that no respectable tradesman would have asked his customers to do this, and no respectable customer would have wanted to be seen doing so.

Things to consider

The restrictive approach taken by the court in this case is to be contrasted with the more permissive interpretation adopted in Risegold v Escala. The easement in that case was a right of entry for the purposes of carrying out works of rebuilding or renewal to the property. The court said that this was not limited to a replacement of the property with something substantially similar. If this were not the case difficult questions would arise as to exactly how similar the new property had to be. The scope of the easement would be too uncertain.

Arguably the outcome in Greatorex v Newman may be open to criticism on the same grounds. How similar does the usage have to be? Clearly the court did not think that it was confined to use of the property as a fishmongers, and that other retail uses were allowed within the scope of the easement. It is hard to predict the attitude of the court to a non-retail use such as offices or residential, with which no obvious comparison between retail customers and delivery persons can be made.

While this decision rests on its facts, it emphasises the importance of checking carefully whether rights benefiting a property are sufficient for its intended use. In this case, that involved historical research into the use of the property some 80-odd years earlier.