Does an easement over land benefit additional land?

The Court of Appeal has recently considered an issue revolving around whether additional land can benefit from an express easement. Darren Millis, Commercial Property Partner, draws out the lessons of  Gore v Naheed and another (2017) EWCA Civ 369.

Facts:

A property known as “the Granary” benefitted from an express right of way granted in 1921 over an area of third party access land. The right of way was expressed to be “…for all purposes connected with the use and occupation of the said granary, but not further or otherwise.” The owner of the Granary subsequently acquired the freehold of part of the access land (adjoining the Granary) by prescription and used this land as a garage for the benefit of the Granary. However, the garage itself did not have the benefit of an express right of way over the access land. The owners of the third party land utilised the land for deliveries to their business and, therefore, at times blocked the access land preventing the owner of the Granary using the access land to drive his car into his garage. The owner of the Granary sought an injunction to prevent this from happening. The owners of the access land in turn argued that the garage did not have the benefit of a right of way, utilising the principle established in the 1904 case Harris v Flower that a right of way granted specifically for access to dominant land cannot also be used for access to land adjoining or neighbouring land.

Decision:

The Court of Appeal upheld the first instance decision that the right of way included a right to use the land as an access to the garage.

• The Court of Appeal helpfully summarised the cases subsequent to Harris v Flower which demonstrate that an easement in favour of land can extend to adjoining or neighbouring land where the use of the adjoining or neighbouring land accommodates the land with the benefit of the easement; by that we mean the use of the additional land is in some way also ancillary to the dominant land. This “accommodation” will however depend upon the individual circumstances of the case;
• Lord Justice Patten was clear in his judgment that “…the right of way up to the Garage is nonetheless a valid easement provided that it can be said to that it enures for the better enjoyment of the Granary”, he went on (after summarising the more recent case law), to say “I do not accept that parking within the Garage by a resident of the Granary should be treated as the use of the Garage in its own right for a purpose independent of the use of the dominant tenement”;
• An important corollary is to say that if the Garage was in separate ownership (in which case the use would not accommodate the Granary), then there would be no easement for the separate use of the Garage;
• The case also demonstrates that the court will construe the original grant and look extremely carefully at the facts. It clearly assisted the court, in this instance, that the wording of the easement contained such accommodating phraseology;

Practical implications:

• The Court of Appeal built on its conveyancing lessons for practitioners in Shaw v Grouby by making it clear that the wording of an easement should be precise and appropriate to the circumstances. If parties wish to exclude land from the benefit of an easement then they should specifically do so in the grant itself;
• It is still correct to say that an express right of way may does only benefit the dominant land, but there may be an accidental benefit to adjoining or neighbouring land dependent on the facts of the case. The court of appeal simplified this area of law by summarising the previous cases;
• Unfortunately it is almost impossible to look 100 years ahead (the right in this case was granted in 1921) but practitioners can ask questions about the use of the dominant land, as well as the servient land, to have an actual understanding of the right of way on the ground, and check if their wording matches their clients’ expectations and requirements.

If you need further advice from our Commercial Property team contact Darren Millis, on 01908 689319 or email dmillis@geoffreyleaver.com

Darren Millis | Partner