Rights of way

The case

The case of Gore v Naheed [2017] EWCA Civ 369 centred on the use of a driveway which connects Mr Gore's house, known as the Granary, to Church Street in Pangbourne, Berkshire. The Naheeds' premises at 4-8 High Street are used for a family wine merchants business. The ownership of the driveway is divided between various parties.

The Granary enjoys a right of way to Church Street over the driveway, which was granted in a conveyance from 1921, "with or without horses or other animals carts or wagons laden or unladen to go and return along and over the private entrance road or way coloured yellow on the said plan for all purposes connected with the use and occupation of the said granary but not further or otherwise."

Next to the Granary is Mr Gore's garage which was built on land that once formed part of the driveway but which was acquired by adverse possession many years ago. Although the Naheeds' premises front on to the High Street, they use the driveway for deliveries. Because the driveway is a relatively small space, when a lorry parks or delivers goods to the wine merchants this often means that Mr Gore either cannot access or exit from his garage. He instigated court action against the Naheeds on the grounds that they were obstructing his right of way. They appealed against the order which had been granted in his favour, and argued that his right of way did not extend to a right to park in the garage for extended periods of time. They based their argument on a line of cases starting with Harris v Flower in 1904 in which it was decided that a right of way can only be used for the benefit of the dominant land, not for other plots.

However, Mr Gore's case also draws on a train of thought argued in many of the previous cases in which the Courts have acknowledged that a right of way can sometimes extend to the additional plot if that plot is used for purposes which are ancillary to the dominant tenement.

The Court found in favour of Mr Gore on the grounds that the garage was used in conjunction with the house. They stressed that this would not be the case if the garage were used independently of the house, for instance if it were let to a third party.

What does this mean for landowners in future?

When investigating title to land prior to a purchase or new lease, it is a good idea to:

• Look carefully at the language used in the grant. Is it very specific as to the land that will benefit from the right of way and the purposes for which that right is granted?
  
  
• If the right arose through 20 years' continuous use, it will be harder precisely to identify the right so it is likely to be a more general right of way (such as "pedestrian" or "all purposes in connection with running a restaurant business") although in principle it could be more specific (such as "access for an oil tanker to deliver along a lane to an oil tank").
  
  
• Is the use of the adjacent land truly ancillary to the use of the dominant land? Factors to consider include:
  
  
  • Is the additional land to be used for commercial purposes? Caselaw has tended to lean against increasing the burden on a servient owner in order for the dominant owner to profit financially.
    
    
  • Is the additional land used by a third party? This would point to independent use rather than ancillary use.

When granting a new right of way over your land:

• Be very specific as to the route over your land which you will permit, which land will benefit from that grant and the purposes for which you will allow access.
  
  
• Set out in the deed of grant the context in which you have come to this agreement with your neighbour, as that background information might prove valuable if there is a dispute in future.
  
  
• Accepting that the use of land will change as time goes by, think about whether it is possible to agree a formulation that allows you a measure of ongoing control, for instance consider granting a narrow right of way plus a mechanism that requires your consent to any changes.

Conversely, when negotiating a right of way over someone else's land, you will probably want as much flexibility as possible so ideally the right should benefit the dominant land and any other land used in conjunction with that land or used or owned by the owner of the dominant land from time to time.