A right of way may be limited in scope or may entitle the user to obtain access to land for any purpose. A deed of grant of easement that expressly grants rights to use a roadway “for all purposes” is, on the face of it, sufficiently wide to encompass subsequent changes in use of the dominant land.
By contrast, easements granting rights of way to and from dominant land between specified times or for limited purposes are more restrictive. Rights of way that are expressly limited by reference to a particular use, or to the purposes for which land is being used, will prevent users from using the right of way in the event of any subsequent changes in use of the dominant land.
A right of way may be limited in scope or may entitle the user to obtain access to land for any purpose. A deed of grant of easement that expressly grants rights to use a roadway “for all purposes” is, on the face of it, sufficiently wide to encompass subsequent changes in use of the dominant land.
By contrast, easements granting rights of way to and from dominant land between specified times or for limited purposes are more restrictive. Rights of way that are expressly limited by reference to a particular use, or to the purposes for which land is being used, will prevent users from using the right of way in the event of any subsequent changes in use of the dominant land.
The question for the Court of Appeal in Davill v Pull [2009] EWCA Civ 1309; [2009] PLSCS 344 was whether a right of way “for all reasonable and usual purposes” should be interpreted more restrictively than a right of way “for all purposes”. The dominant land was described as “garden ground” in the conveyance granting the right of way. However, the landowner had obtained planning permission for development and was building new houses on the dominant land.
Their lordships accepted that the interpretation of a deed of grant of easement is always dependent on its terms, construed against the background circumstances. They also agreed that use “for all reasonable and usual purposes” is not the equivalent of use “for all purposes”. However, they took the view that the phrase that the draftsman had chosen had been an odd phrase to use if the intention had been to limit the use of the track to provide access to gardens.
The parties had obviously contemplated that the dominant land would be used as garden land. However, this did not of itself indicate an intention to impose restrictions on the use of the track. The dominant land had been described as “garden ground” for identification purposes, and not to limit the purposes for which the track could be used.
There might be room for disagreement as to whether a particular use was “reasonable or usual”. None the less, the construction of a building for use and occupation as a dwelling house in accordance with planning permission was reasonable and usual. Consequently, the right of way over the track could lawfully be used to build the houses and to obtain access to them while occupied.
Conveyancers will welcome this decision. If the court had ruled otherwise, its decision would have had implications for virtually every right of way to land described by reference to the use to which it was being put when the right of way was granted.
The decision confirms that the court must be satisfied that the parties had intended to restrict the rights granted. Draftsmen can achieve this by imposing express limitations in a deed of grant of easement, to which they can resort before a change of use becomes excessive or unreasonable.
Allyson Colby is a property law consultant
