The general rule is that, where a person has a right of way over one piece of land to get to another, he cannot use the right of way to go elsewhere. In other words, he is entitled to go to and from the dominant land – and nowhere else. The principle has become known as the rule in Harris v Flower (1904) 74 LJ Ch 127. It makes it impossible for the dominant landowner to extend the geographical scope of an easement without the servient landowner’s consent, and can cause problems if a landowner already owns, or acquires, adjoining land and tries to use his right of way to obtain access to that land too.
There are some limited exceptions to the rule. In National Trust for Places of Historic Interest or Natural Beauty v White [1987] 1 WLR 907, the court held that use of a right of way to access a car park for visitors to the dominant land was ancillary to the enjoyment of the dominant land. In Massey v Boulden [2003] 1 EGLR 24, the court upheld a right of way to a dwelling house (which had increased in size by the addition of two rooms from an adjoining property), and in Wall v Collins [2007] PLSCS 104 the court ruled that use of a passageway to obtain access to a newly acquired garage was ancillary to the use of the dominant land.
The issue that arose in Gore v Naheed [2017] EWCA Civ 369 was whether the owners of a house were entitled to use a right of way in order to obtain access to land beside the house. The land in question had once formed part of the right of way, but had become theirs through adverse possession and was now a garage, with bedrooms above.
The Court of Appeal highlighted the difference between use of the right of way for the benefit of the garage itself and use for the benefit of the house. It rejected arguments that the use of the garage was an independent use in its own right and ruled that it was ancillary to the use and enjoyment of the house. It would be different if the garage were let to, or used by, a third party separately from the occupation of the house. However, that was not the case here.
The court took the view that the ancillary use fell within the scope of the right of way granted to the owners of the dominant tenement. The grant permitted them “to go and return along and over the private entrance road or way … for all purposes connected with the use and occupation” of the house – and the court ruled that this was wide enough to include direct access to the garage for parking in connection with the residential use of the house.
In 2008, the Law Commission suggested that there should be a new statutory test, in place of the rule in Harris v Flower, which would require the court to consider whether any additional use of an easement is excessive: see “Easements, Covenants & Profits à Prendre” (Law Comm No 186). But, following opposition, the suggestion was dropped. Consequently, Harris v Flower will remain good law unless and until it is overturned. However, this case suggests that the courts are prepared to be flexible and that the law is still evolving.
Allyson Colby is a property law consultant
