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Mark Withers | 11th August 2017

What land does a right of way benefit?


Mark Withers | 11th August 2017

What land does a right of way benefit?

An easement which passes (or runs) with land so as to benefit successors can only exist where a number of requirements are satisfied:

  1. The right must be one which is capable of being an easement (examples include rights of way, rights of light and a right to the passage of water).
  2. The land must benefit one piece of land which is in different ownership from another piece of land over which the rights are exercised; and
  3. There must be an established piece of land which benefits from the rights (known as the dominant land).

Whether the use of an easement is lawful (i.e. falls within the terms of the grant) is a point frequently raised and is often questioned where the dominant land is altered, extended or redeveloped.
The case of Harris v Flower established the principle that a right granted for the benefit of one piece of land over another cannot be used for the benefit of a separate piece of land.
As ever, what appears to be a simple principle is subject to exceptions and the case law is difficult to reconcile. The case of Das v Lyndon Mews related to a right of way to a house. The Court of Appeal held the right couldn’t be used to access a garden area adjoining the house. In contrast, the High Court held in the case of National Trust v White that a right of way could be used to access a car park even though it was outside of the dominant land.

The recent Court of Appeal case of Gore v Naheed represents a further examination of the principles surrounding easements. A property (known as the Granary) had the benefit of an express right of way:

‘to go and return a long and over the private entrance road… for all purposes connected with the use and occupation of the said granary but not further or otherwise’.

A garage adjoined the Granary and was acquired by the owner of the Granary in 2007. The private road was used to access the garage until a dispute arose at which point the owner of the private drive questioned the right to use the private road in order to access the garage.

The Court of Appeal concluded that since the use of the garage was ancillary to the use of the Granary the rights extended to allow access to both the Granary and the garage. The precise wording used in the original grant of rights (which stated the rights could be used ‘for all purposes connected with the use and occupation of the said Granary’) was significant as was the fact that the garage was used directly in connection with the occupation of the Granary itself. If in the future the garage ceased to be used ancillary to the Granary the rights would cease to allow access to the garage.

This case doesn’t establish any new principles but it does emphasise how careful a party granting rights over its land needs to be if it’s intended those rights only benefit a specified piece of land. Equally, a party seeking to use existing rights to benefit both an existing area and land subsequently acquired will need to look carefully at the terms in which the rights are granted before deciding whether an approach needs to be made to the owner of the servient land to obtain a further grant of rights.

If you wish to discuss any of the issues raised in this blog please contact me.

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