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Lawbite: the right way to use a garage

  • United Kingdom
  • Litigation and dispute management
  • Real estate
  • Real estate dispute resolution

26-06-2017

Gore v Naheed and Another [2017] EWCA Civ 369

A right of way is a type of easement. It is the right that the owners of one piece of land (called the dominant land) have to pass over another area of land (the servient land). A right of way and what a party is allowed to use it for can therefore be extremely important.

A property known as ‘The Granary’ benefitted from a right of way over a driveway “for all purposes connected with the use and occupation of the said Granary”. The owner of the granary (“A”) also owned a garage on adjoining land. A used the right of way to access the granary and to access and park at the garage. Deliveries to a shop, owned by B, often obstructed A’s use of the right of way. Accordingly, A sought an injunction restraining the use of the driveway.

A was granted the injunction, and a declaration was made that the use of the driveway to access and park at the garage, as long as it was only ancillary to A’s use of the granary, was within the scope of the right of way. B appealed on several grounds, including on the basis of the principle in Harris v Flower, that the right of way to the granary did not extend to a right of access to park at the adjoining garage.

The Court of Appeal upheld the decision of the County Court that the right of way could be used in order to access the garage for parking ancillary to the use and occupation of the granary.

The wording of the express easement was highly significant. Namely that it was for “all purposes connected with the use and occupation of the land”, and the court gave particular weight to one of the essential characteristics of an easement; that the easement must “accommodate” the dominant land. It would have been different if the garage were let to or used by a third party separately from the occupation of the granary.


Key points

  • the decision means that there are limited  circumstances in which other land may benefit from an incidental right of way, namely where the use of said land is ancillary to the use and occupation of the dominant land
  • if the garage had subsequently been sold off, or was used for a purpose unconnected with the granary, it would no longer benefit from the right of way
  • this case does not change the existing law. A right of way from X to Y will not entitle a party to use it to get to Z, unless the use of Z is exclusively connected to the use and enjoyment of Y