There are three interesting recent cases in this area.

Kennerley v Beech [2012] EWCA Civ 158 is not of wide application because the facts were very peculiar. There was an express reservation of a right of way over a wiggly path. But the path led nowhere. Consequently it conferred no benefit on the alleged dominant tenement. It is a fundamental characteristic of an easement that it should accommodate the dominant tenement, in the sense that it is reasonably necessary for the better enjoyment of that tenement (Re Ellenborough Park [1956] 1 Ch 131 as 170). Unsurprisingly the Court of Appeal held that the reservation did not create a valid easement.

Kettel v Bloomfold [2012] EWHC 1422 (Ch) is an instructive decision about rights to park and remedies for interference with an easement.

It is well settled that a right to park a car is capable of being an easement London and Blenheim Estates v Ladbroke Retail Parks Ltd [1992] 1 WLR 1278, Batchelor v Marlow [2001] EWCA Civ 1051, and Moncrieff v Jamieson [2007] UKHL 42.

Unfortunately Batchelor introduced uncertainty into the law. The Court of Appeal held that the claimed right to park could not be an easement because the alleged servient owner was left “without any reasonable use of his land whether for parking or anything else”. This is bad law (Lord Scott in Moncrieff v Jamieson (supra) at para 59) but has not yet been formally overruled. The judges have obediently followed Batchelor on the law but have distinguished it on the facts because it is almost always possible to say that the servient owner retains some reasonable use of the land (Virdi v Chana [2008] EWHC 2901 (Ch)). The judge in Kettel said he was bound by Batchelor and then promptly distinguished it on the facts.

An authority that judges always distinguish is doomed. Sooner or later Batchelor will be overruled.

The other significant point in Kettel is about remedies. The servient owner tried to persuade the judge to award damages in lieu of an injunction. The judge reaffirmed the long standing principle that in the absence of special circumstances an injunction is the appropriate remedy for an interference with an easement.

Giles v Tarry [2012] EWCA Civ 837 reaffirms the rule in Harris v Flower (1904) 91 LT 816 at 819; 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. The test is “What was in substance and intention the user claimed by the dominant owner?” (Briggs J at para 20). However a purely ancillary use of the right of way to reach close B may be permissible provided that the essential purpose of the use of the right of way is to reach close A rather than close B (National Trust v White [1987] 1 WLR 907 as explained by Das v Linden Mews Ltd [2002] EWCA Civ 590 at paras 18-21).