A right of way benefitting one piece of land can in some circumstances be interpreted to benefit another separate piece of land.
Rights of way
Owning a piece of land is of very limited value if one cannot gain access to it (i.e. it is ‘landlocked’). Not all land has direct access to public highways, a situation which is currently being exacerbated by the trend for ‘backlot developments’, i.e. building on land behind or beyond properties that do have direct access to the highway.
The legal and practical solution that has been developed over many years is for the owner of the ‘landlocked’ piece of land to seek permission to come and go across the land owned by another. If an agreement is reached then a legal right of way is created. This right of way can be a very valuable property interest which will benefit the ‘landlocked’ land for years or even centuries.
The creation of a right of way is usually by an agreement or contract (often called a grant). What is or is not allowed is dependent primarily on the terms of that agreement. An essential element is that there needs to be two pieces of land: one piece of land subject to the right of way, and one piece of land that benefits from it.
Difficulties can arise once a right of way agreement is created:
- there is no one general form for the grant of a right of way (so each one needs to be read carefully and understood in the context in which it was granted)
- the nature of the use of the relevant pieces of land (i.e. how much use, or for what it is used), or the wishes of the parties, or the character of the area, might change over time. The original grant can become - usually in the opinion of the person with the benefit of it - outdated.
Gore v Naheed
An important case in the Court of Appeal (Gore v. Naheed  EWCA Civ 369) reviewed the many cases about what the legal position is where someone who has the benefit of a right of way wishes to use it for ‘additional’ land, i.e. land not expressly covered by the original grant.
Mr Gore owned property in Pangbourne, Berkshire, called the Granary. The Granary had enjoyed a right of way since 1921 ‘to go and return along and over the private entrance road or way coloured yellow…for all purposes connected with the use and occupation of the Granary’.
This right of way was, in part, over property owned by Mrs Naheed and Mr Ahmed.
In addition to using the driveway to gain access to the Granary, Mr Gore used it to gain access to an adjacent garage.
Unfortunately, access to both the Granary and the garage was frequently obstructed by vehicles delivering goods to Mrs Naheed and Mr Ahmed’s premises, and Mr Gore took Mrs Naheed and Mr Ahmed to court about that. The question arose: was the 1921 right of way sufficiently wide to accommodate direct access to both the Granary and the garage?
Mr Gore won.
The Court of Appeal held that Mr Gore's use of his garage was ancillary to the enjoyment and use of the Granary. Consequently the easement granted by the 1921 conveyance was wide enough to include direct access to the garage for parking in connection with the residential use of the Granary. This is because the right of access was for ‘all purposes connected with the use and occupation of the Granary’.
The Court of Appeal tried to clarify some of the earlier Court decisions about rights of way and indicated that:
- there is no general legal principle, applicable in all cases, that use of a right of way for one piece of land cannot be expanded to include access to another piece of land: the decision will always depend upon the terms of the original grant
- there is no difference in principle as to whether the ‘additional’ land is to be accessed through the original piece of land, or whether it is next to it, or lies alongside the right of way. They are all factors to take into account in understanding the original grant.
- it was important that the garage was used by Mr Gore for the benefit of and ancillary to the Granary. The situation could and probably would have been different were the garage to be let to or used by a third party separately from the occupation of the Granary.
This decision is a reminder that the extent of a right of way will depend on understanding the terms of its grant. The guidance of the Court of Appeal in Gore v Naheed is that expansions or variations to a right of way will only be allowed incrementally.
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