Land – Easement – Right of way – Respondent enjoying right of access to garage over appellants’ driveway – Respondent obtaining injunction and damages for alleged obstruction of right of way – Whether right extending to use of driveway for direct access to garage to leave car parked for indefinite period – Appeal allowed in part
The respondent owned a property known as the Granary in Pangbourne, Berkshire. The appellants owned neighbouring premises from which they ran a family business. The respondent enjoyed a right of way over the appellants’ driveway for the purposes of loading and unloading by virtue of a 1921 conveyance. The respondent also used the driveway to gain access to an adjacent garage which he owned. The appellants used the driveway for deliveries which had the effect of obstructing vehicular access to the Granary or the garage. The appellants accepted that the respondent might legitimately access the garage via the driveway and park there temporarily for loading and unloading but disputed his right to use the driveway for direct access to the garage to leave a car parked there for an indefinite period.
The respondent brought an action for damages and an injunction in respect of the alleged obstruction of his right of way. The judge declared that the rights granted by the 1921 conveyance included the right for the respondent to pass over the driveway for the purpose of parking in the garage. He granted an injunction which prevented obstruction of vehicular access to the garage but provided that parking of a vehicle by the appellants on their part of the driveway for up to 20 minutes for the purpose of loading and unloading should not amount to an obstruction. The judge also awarded the respondent general damages of £2,500 in addition to special damages of £4,584.54 for lost rent, as a result of the early termination of a tenancy of the Granary due to the obstruction, and costs.
The appellants appealed contending that: (i) to use the driveway for the purpose of parking in the garage fell outside the scope of the easement granted under the 1921 conveyance on the correct application of the decision in Harris v Flower & Sons (1904) 74 LJ Ch 127; (ii) the time limit should have been a minimum period of two hours; (iii) the award of general damages was unreasonable and inconsistent with the award of special damages; and (iv) the judge should have made a deduction against the respondents’ costs following the guidance in PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288 because the respondent had refused their invitations to mediate.
Held: The appeal was allowed in part.
| (1) The judge was entitled to find that the use of the garage was ancillary to the use and enjoyment of the Granary. Parking within the garage by a resident of the Granary was not the use of the garage in its own right for a purpose independent of the use of the dominant tenement. The judge was also correct to hold that that ancillary use fell within the scope of the grant. The terms of the grant were arguably wider than those in Harris v Flower but were certainly no narrower. They were wide enough to include direct access to the garage for parking in connection with the residential use of the Granary. The court was required to construe the language of the grant having regard to the layout of the place where the cause of action arose and all other material facts and circumstances. There was no room for any legal distinction between passing through and passing alongside cases. The physical differences between the two situations were simply facts to be taken into account in determining whether the alleged right of access could be said to have been consented to by the original servient owner as part of the grant: Harris v Flower (1904) 74 LJ Ch 127, National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907, Alvis v Harrison (1991) 62 P & CR 10, Peacock v Custins [2001] 1 EGLR 87, Das v Linden Mews Ltd [2002] EWCA Civ 590; [2002] 2 EGLR 76, Massey v Boulden [2002] EWCA Civ 1634; [2003] 1 EGLR 24 and Wall v Collins [2007] Ch 390; [2007] PLSCS 104 considered.
(2) The order contained a general injunction against the defendants requiring them not to obstruct vehicular access to the garage. Sometimes it would be possible for a delivery van to be parked in front of the garage for two hours or more without obstructing access when the respondent had no need to use the driveway. However, assuming there were competing needs for use of the driveway, the judge been entitled to decide what in his view was the maximum period of untolerated parking that could be imposed on the respondent consistently with reasonable use of the driveway. Neither side had previously suggested that the period imposed was wrong in principle, nor had there been any argument about the evidence on which the judge’s order was based. Accordingly, there were no grounds for interfering with the judge’s assessment. (3) The award of general damages was based on the inconvenience and difficulty caused by the obstructions when the Granary was let and the respondent had suffered no personal inconvenience or distress. Although they had caused the tenant to leave early, the respondent had been compensated for the loss of rent by the award of special damages. Given that no claim for general damages was either pleaded or advanced at trial, the award of £2,500 could not stand. (4) A failure to engage, even if unreasonable, did not automatically result in a costs penalty. It was simply a factor to be taken into account by the judge when exercising his costs discretion. In this case, the judge had concluded that it was not unreasonable for the claimant to refuse to mediate. His solicitor considered that mediation had no realistic prospect of success and would only increase the costs and the case raised quite complex questions of law which made it unsuitable for mediation: PGF II SA v OMFS Co 1 Ltd [2013] EWCA Civ 1288 applied. |
| Jonathan McNae (instructed by Louise Greer Solicitors, of Maidenhead) appeared for the appellants; Henry Webb (instructed by Richard Wilson Long Solicitors, of Pangbourne) appeared for the respondent. |
Eileen O’Grady, barrister
