A Court of Appeal ruling on rights of way raises more questions than answers, writes Allyson Colby
Key points
- A Court of Appeal decision puts a new slant on the operation of the rule in Harris v Flower
- The way in which the rule applies will depend on the physical geography and wording of the easement granted
Suppose that land has the benefit of a right of way and that the landowner acquires a building plot next door. The building plot is landlocked. So the landowner plans to use his right of way to obtain access to the dominant land and, thence, to gain access to the plot.
There is just one snag. In general, rights of way are exercisable only to get to and from the land to which they are attached and cannot be used to go elsewhere. This is because the court will not permit extensions to the geographical scope of an easement without the consent of the servient landowner.
The rule in Harris v Flower (1904) 74 LJ Ch 127, as it has become known, has its critics. It can be difficult to apply, and subsequent cases have fallen on different sides of the line for reasons that are difficult to fathom. Consequently, the Law Commission proposed the introduction of a new test that would require the courts to consider whether any additional use of the easement would be excessive: see “Easements, Covenants & Profits à Prendre” (Law Com No 186). However, following opposition, the proposal was dropped.
Therefore, unless and until the Supreme Court intervenes, the rule stands. Gore v Naheed [2017] EWCA Civ 369; [2017] PLSCS 111 provides us with up-to-date analysis from the Court of Appeal, which suggests that the thinking that underpins the principle is still evolving.
Right of way
The dispute centred on the use of a right of way that connected a house, known as The Granary, to the public highway. The owners had acquired land immediately beside the house through adverse possession and had constructed a garage on it. The land in question had once formed part of the access way. So the right of way now stopped at the garage.
Were the owners of the house entitled to use the right of way to get to, and park their car in, the garage? Or was this beyond the scope of the easement attached to the house, thanks to the rule in Harris v Flower?
Things did not look promising. In Das v Linden Mews Ltd [2002] EWCA Civ 590; [2002] 2 EGLR 76, the court ruled that a landowner was not entitled to use his right of way to obtain access to a parking area beside his house because it was not part of the dominant tenement.
Interpretation
Patten LJ, who spoke for the Court of Appeal, accepted that the grant of a right of way across plot A to plot B, and nowhere else, necessarily limits the scope of the grant to direct access to plot B. In such a case, the use of plot A to obtain access to plot C is simply not within the grant and any use of plot A for that purpose would amount to a trespass. However, he stressed that it was important to be clear why this is so and in what context it holds good.
His Lordship quoted from Vaughan Williams LJ’s speech in Harris v Flower, in which he stated: “The burthen imposed on the servient tenement must not be increased by allowing the owner of the dominant tenement to make a use of the way in excess of the grant.” Patten LJ suggested that Harris v Flower, and subsequent cases, turned on questions of construction and not on the application of a principle that operates irrespective of the terms of the grant. Therefore, the court must ascertain the extent of the rights granted in order to decide whether the grantor can be said to have consented to the rights now being claimed.
His Lordship rejected arguments based on a distinction between “passing through” cases (where a landowner uses land that benefits from a right of way to obtain access to neighbouring land) and “passing alongside” cases (where a landowner seeks to obtain access to neighbouring land without going through the dominant tenement at all). Such physical differences, together with all other material facts and circumstances, are simply factors to be taken into account when determining the scope of the easement.
Ancillary use
The landowners had the benefit of a right “to go and return along and over the private entrance road or way… for all purposes connected with the use and occupation” of the house. Was this wide enough to include access to the garage for parking in conjunction with the use of the house? The court decided that it was.
Did access to the garage operate for the benefit of the house? The court ruled that it did. Patten LJ explained that there was a difference between use of the right of way for the benefit of the garage itself, and use for the benefit of the house. It rejected arguments that the use of the garage was an independent use in its own right. It would be different if the garage were let to, or used by, a third party separately from the occupation of the house. But that was not the case here. The use was subsidiary or ancillary to the use and occupation of the house and fell within the scope of the right of way granted for its benefit.
It has long been recognised that the law needs to be flexible if use made of neighbouring land is ancillary to the use of dominant land. Does this case go further? Or is it simply another of the exceptions that proves the rule in Harris v Flowers? Guidance from the Supreme Court is long overdue.
Allyson Colby is a property law consultant
