In the recent case of Gore v Naheed , the Court of Appeal provided a useful analysis of the effect of various well-established cases on easements. In particular, the decision elucidated the extent to which additional, non-dominant land can benefit incidentally from an easement benefiting other dominant land.
A property known as the Granary benefitted from an express right of way over a driveway, granted in a conveyance dated 11 November 1921. A part of the driveway was acquired by adverse possession by a subsequent owner of the Granary and later built on to provide a garage for the Granary.
Part of the remainder of the driveway was owned by shop owners (‘Shop Owners’), whose shop backed onto the driveway.
The owner of the Granary (G) maintained that deliveries to the shop obstructed the driveway and prevented access to the Granary and the garage. G sought an injunction preventing such obstruction and damages.
The Shop Owners argued in part that G did not have the right to use the access way to obtain direct access to the garage, as this fell outside the scope of the easement.
The Court of Appeal found that the right of way could be used to access the garage for parking ancillary to occupation of the Granary. Particular emphasis was placed on the requirement that the right of way over the servient land (the driveway) to the garage be capable of taking effect as an easement which accommodates the use and occupation of the dominant land (the Granary).
This analysis did away with distinctions between ‘passing through’ cases (where the easement passes over servient land to the dominant land and then onto other non-dominant land) and ‘passing alongside’ cases (where the easement facilities access directly from servient land to other non-dominant land).
Rather, the Court focused on (i) the terms of the express grant and (ii) whether the access sought in favour of land adjoining the dominant land is subsidiary or ancillary to the use and enjoyment of the dominant land (failing which the incidental right to access could not exist).
While it remains the position that, ordinarily, easements over servient land only benefit the relevant dominant tenement, the decision clarifies the circumstances in which other land may benefit from an incidental right of way and emphasises the requirement that the use of such land is ancillary to use and occupation of the primary dominant land.
Notwithstanding the Court of Appeal’s elucidation, this remains a complex area of law. For assistance, please contact our property teams: