Rights of way - whose right is it anyway?


23-06-2017

The case of Gore v Naheed and Ahmed (2017) EWCA Civ 369, recently decided by the Court of Appeal, has provided useful guidance as to when a right of way granted for a specific property can be extended to cover neighbouring land, says Barbara Judkins of Hewitsons.

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Mr Gore (“the claimant”) bought The Granary in Pangbourne, Berkshire in March 2007. The Granary had the benefit of a right of way granted in a Conveyance dated 11 November 1921 “to go and return along and over a private entrance road connected with the use and occupation of the said Granary but not further or otherwise.” This entrance road or driveway connected the Granary which overlooked the river Pang, with Church Street in Pangbourne. When purchasing The Granary, the claimant had also bought from the vendor adjacent garage land where a garage with bedrooms above had been constructed in 1994. The garage had been built on what had been originally a section of driveway at the time of the original grant in 1921.

In 2012, the defendants bought premises at 4-8 High Street for use as a family wine merchants’ business. Although the premises fronted the High Street, they used the driveway, part of which they owned, for deliveries. Due to the restricted area of the driveway, the effect of the defendants unloading or parking to the rear of their premises was frequently to obstruct vehicular access to the Granary and to the Garage. The defendants accepted that the claimant could lawfully drive a car to the front door of the Granary or the front door of the garage and park there temporarily for loading and unloading. However the judge had found that on various occasions, the defendants’ van had parked outside the rear of their premises thus preventing access to the garage itself. The defendants argued that the use of the driveway for the parking in the garage was outside the scope of the right of way granted in the 1921 Conveyance and thus when their van had been parked in such a way as to block access to the garage, this did not breach the claimant’s rights.

As an easement, a right of way has a dominant and a servient tenement i.e. land to be benefitted and land to be burdened. A right must operate for better enjoyment of that land. The court had to decide whether the right to access the garage came within this definition. The court took the opportunity of reviewing the extensive case law on this point before upholding the decision of the trial judge on this point that the use of the garage was ancillary to the use and enjoyment of the Granary. The decision would have been different if the garage had been in separate ownership from the Granary.

The Court of Appeal also confirmed the terms of the injunction imposed by the trial judge where it been ordered that a delivery van parked for loading or unloading for no more than 20 minutes would not be deemed an obstruction.

Finally the Court declined to impose a costs penalty on the claimant for having refused to mediate on the basis that his solicitor had judged that the mediation had no realistic chance of success and that the case raised quite complex questions of law. The Court agreed with the trial judge that these factors made it unsuitable for mediation.

If you would like advice on a property dispute including rights of way, please contact Barbara Judkins on 01223 447432 or click here to email Barbara.

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