A right of way can normally be used for the benefit of specific land, but on rare occasions it can be used for the benefit of adjacent land.
This was the tricky issue which faced the Court of Appeal recently. In Gore v Naheed, a property known as the Granary benefited from a right of way over a shared driveway. The Granary's owner, Mr Gore, owned a garage on neighbouring land in which he parked his car. He used the driveway to access the garage, as well as the Granary.
Deliveries to a nearby shop meant that access to the garage over the driveway was sometimes obstructed and on occasion the shop owners parked their van in front of the garage, obstructing access to it. A dispute arose and Mr Gore brought an action for damages and an injunction in respect of the obstructions.
In a conveyance of 11 November 1921 the Granary was granted ' the right . to go and return along and over the private entrance road or way coloured yellow . for all purposes connected with the use and occupation of the said granary..'
Mr Gore purchased the Granary and the garage in 2007. The point of law at issue was whether Mr Gore had any right to use the driveway to access the garage. Was this outside the scope of the easement which had been granted to benefit the Granary? If it was, his claim would fail.
Reasoning and decision
A right of way is a type of easement. Two of the essential aspects of any easement are that there must be a dominant and a servient tenement - that is, land that is benefitted and land that is burdened - and that the easement must accommodate the dominant tenement. In other words it must operate for the better enjoyment of that land. The dominant tenement for the purpose of the easement over the driveway was the Granary, not the garage land.
Therefore the court had to consider whether a right to use the driveway to access the garage was within the terms of the easement granted, because that use operated for the better enjoyment of the Granary. The county court found in favour of Mr Gore.
The shop owners challenged this interpretation of the easement, basing their argument on a line of cases starting with Harris v Flower in 1904. That case established that a dominant owner cannot use a right of way for the benefit of land other than the dominant tenement. Essentially, a right of way over Land A granted to Land B cannot be used to access Land C.
There is a considerable amount of case law in this area which the Court of Appeal considered and ordered in turn before reaching its conclusion. But ultimately, it upheld the county court's decision in favour of Mr Gore and confirmed that it is possible for an easement over Land A to be used in connection with Land C in certain circumstances.
In its view, the issue to be decided was one of construction of the 1921 conveyance. The wording of the easement granted was very wide. It enabled Mr Gore to go and return over and along the driveway for all purposes connected with the use and occupation of the Granary.
Also, the use of the garage for parking by the resident of the Granary was ancillary to the use and enjoyment of the Granary. It could not be said that its use was for a purpose independent of it. However if the garage were let out or sold separately then its use would be independent of the Granary and it would no longer enjoy the right of way.
This is a very helpful decision by the Court of Appeal not least because of its review of the plentiful and rather difficult case law in this area. However property owners and practitioners should not sit on their laurels. No one wants to have to litigate to establish the extent of a right of way and it is always preferable to negotiate appropriate rights at the outset.