This article was first published for Thomson Reuters: Practical Law.

Andrew Skelly, of Hardwicke Chambers, considers the courts' approach to easements, particularly the use of rights of way where the dominant tenement owner acquires additional land.

The English word "easement" means the act of easing or something that brings ease; something that makes life easier (from the old French "aisement", meaning easily or readily). Unfortunately, the law relating to easements is often anything but. Perhaps the recent case of Gore v Naheed and Another [2017] EWCA Civ 369 might help to clarify some of the issues. (For more information on this case, see Legal update, The extent to which additional land may benefit from an easement (Court of Appeal).)

The court has to be able to identify the dominant tenement, and the general rule is that a right of way may be used only for gaining access to the land identified as the dominant tenement. In Harris v Flower & Sons (1904) 74 L.J. Ch. 127, it was said that:

"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."

This means that where the owner of the dominant tenement acquires additional land, he cannot use a right of way granted for the benefit of the dominant tenement as a means of access to the new land, whether access is gained to the new land directly from the right of way, or via his existing land.

Harris v Flower was applied in Bracewell v Appleby [1975] Ch. 408, where the owner of a house with the benefit of a right of way "of the fullest description" acquired some adjoining land and built another house on it. He was held to have no right, as the owner of the dominant tenement, to extend the grant of the easement to gain access to the new adjoining land.

Two further cases help illustrate the point. First, in Peacock v Custins [2002] 1 W.L.R. 1815, Custins (C) appealed against a decision refusing a declaration that Peacock (P) was not entitled to use a right of way to gain access to land adjacent to his dominant tenement, in order to cultivate the additional land in conjunction with the cultivation of the dominant tenement. Applying Harris v Flower, it was held that the right to use a right of way was determined by the terms of the grant, and anything outside those terms amounted to trespass. The correct test was concerned not with a comparison between the amount of use that might lawfully be made of the servient tenement within the scope of the grant and the amount of use actually made; it was concerned with declaring the scope of the grant having regard to its purposes and the identity of the dominant tenement. In Peacock v Custins [2002] 1 W.L.R. 1815, the use of the right of way, to cultivate the adjoining land, could not be described as "ancillary" to the cultivation of the dominant tenement.

Secondly, in Das v Linden Mews Ltd [2002] EWCA Civ 590, L was a limited company formed by two residents of the mews, which owned the freehold of the carriageway. D were owners of two mews properties, which enjoyed:

"a right to pass and repass over the [carriageway] to and from the highway to their respective properties by foot and with vehicles and a right to halt a single vehicle immediately adjacent to their respective properties for the purposes of loading and unloading the said vehicles."

L contended that whilst D had the right to use the carriageway to access their mews houses and to stop to load or unload, they had no right to use it to gain access to the (later acquired) adjacent garden ground for parking purposes. It was held that it was not possible to extend an easement in order to accommodate any use ancillary to use of the dominant tenement. D had extended the dominant tenement by using the carriageway to gain vehicular access to land used for parking rather than for merely gaining access to their houses.

What is then clear is that the owner of the dominant tenement cannot unilaterally increase its size so as to include land to which the right of way was not appurtenant. But what if he purports to use the right of way for access to land near the dominant tenement where access to that land is not for the enjoyment of that additional land in itself, but "ancillary" to the enjoyment of the dominant tenement?

In National Trust for Places of Historic Interest or Natural Beauty v. White [1987] 1 W.L.R. 907, NT was the owner of Figsbury Ring, an Iron Age hill fort. Access was by a track from the main road, which ran along land belonging to W. In 1970, the county council had built a car park on land adjoining the track and opposite W's land, belonging to the Ministry of Defence. Visitors to the Ring were thus able to park in the car park and then continue along the track on foot. The right of way granted over the track in 1921 was for:

"a right of way for the purchaser his heirs and assigns owners for the time being of [the Ring] and all other persons authorised by him or them from time to time (but in common with all other persons having a like right) to pass and repass over the road or track leading out of the Salisbury to London Road … of a width of 20 feet … at all times and for all purposes."

W purchased their land in 1973 and objected to the volume of traffic passing along the track to the car park, erecting a gate across the track to prevent visitors from passing along it.

A servient owner is not permitted to derogate from the grant of a right of way, but nor is the dominant owner permitted to make unreasonable demands upon it. Whether there is a derogation or unreasonable demand is to be judged against the construction of the grant and the factual circumstances. In National Trust the creation of the car park could not properly be described as an enlargement of the dominant tenement. Warner J held that the use of the track, to obtain access to the car park, was permissible as long as the use of the car park was subsidiary to the use of the Ring, which constituted the dominant tenement. Access to the car park was required, not for the enjoyment of the car park itself, but in order to visit the Ring, and so the use was to be regarded as ancillary to that purpose as such came within the terms of the grant. Plainly, if visitors had used the track to gain access to the car park, and then engaged in the peculiarly British pursuit of enjoying a picnic in the carpark, instead of proceeding on to the Ring, they would have gained access to the car park for the enjoyment of the car park itself, and that would have been impermissible.

At first blush, whilst the results were different, the facts in Das might seem similar to those in National Trust; could parking on the (later acquired) garden land by a resident of the mews house be treated as the use of the garden land in its own right for a purpose independent of the use of the mews house? Surely the use of the carriageway to gain access to the garden land was for the enjoyment not of the garden land in itself, but as ancillary to the enjoyment of the dominant tenement?

Gore v. Naheed [2017] EWCA Civ 369 may shed some light. G was the owner of a Granary with the benefit of the easement, by virtue of a 1921 conveyance:

"with or without horses or other animals carts or wagons laden or unladen to go and return along and over the [driveway of the neighbouring property] for all purposes connected with the use and occupation of the said granary but not further or otherwise."

Part of the driveway had later been acquired by adverse possession by the then owner of the Granary, and a garage had been built upon it. It was agreed that G was entitled to drive a vehicle to the front door of the Granary and to park there for loading and unloading, but the owners of the driveway contended that the effect of Harris v Flower was that G had no right to use the driveway to obtain direct access to the garage for the purpose of parking a car there.

This might also, at first blush, seem remarkably similar to Das. Importantly however, the very specific terms of the grant were different. In Das the right expressed was to be for access to the house, whereas in Gore the right was "for all purposes connected with the use and occupation" of the Granary. On this basis, the use of the garage for parking was ancillary to the use and enjoyment of the Granary. As with National Trust however, the right of access the additional land (in Gore, the garage; and in National Trust, the car park) depended upon its use being ancillary to the use of the dominant tenement; if the garage were to be let to or used by a third party separately from the occupation of the Granary, it could no longer benefit from the right of way over the driveway.

A further point clarified in Gore is that there is no distinction to be made between "passing through" (as in Harris and Peacock) and "passing alongside" (as in National Trust and Das) cases. The alleged right of way in both cases is capable of supporting the dominant tenement if access to the adjacent land operates for the benefit of the dominant tenement. For that reason alone, any distinction between the two types of case has to be found in the construction of the grant, which may depend upon the precise wording used, and which will always be a question of fact.

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