It has long been established that, where a person has a right of way over one piece of land to get to another piece of land, he cannot use the right of way to go elsewhere. In other words, he is entitled only to obtain access to the dominant land.
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 the easement without the servient landowner’s consent. Many regard this as only right and proper, but it does cause problems where a landowner already owns, or acquires, adjoining land and tries to use the right of way to obtain access to that land too.
The law is clear at the extremes. Use of the roadway to access the adjoining land is outside the scope of the grant. However, this does not necessarily mean that the dominant landowner can never cross from the dominant land to the adjoining parcel. In Peacock v Custins [2001] 1 EGLR 87, the court suggested that a person who uses a right of way to obtain access to the dominant land would not be abusing the right of way if he were to picnic on the adjoining parcel,.
Giles v Tarry [2012] EWCA Civ 837 confirms that the court will focus on the ultimate intention of the user. In this case, the dominant landowner enjoyed a right of way along a private driveway into a paddock. The top end of the paddock was also accessible from the public highway by means of a gate on the northern boundary.
The landowner also used an adjoining field to graze sheep. It was easier to obtain access to the field via the driveway, but this was beyond the scope of the easement, which attached solely to the paddock. The farmer came up with a novel solution. He drove his sheep along the driveway and into the paddock. From there, he proceeded through the gate at the top of the paddock and onto the public highway, paused, turned back into the paddock, and then left his sheep to pass into the adjoining field. As a result of these manoeuvres, the final entry into the paddock – and from the paddock into the field – was from the public highway.
Viewed separately, each movement was lawful, but was this enough to satisfy the rule in Harris? The Court of Appeal was not enthusiastic about the rule and Lewison LJ did not consider that the court should extend it. Nonetheless, the use of the driveway was impermissible because the farmer was using an artificial device to obtain access to both the paddock and the field, so that he could use them as a single agricultural unit.
However, there were other legitimate ways of achieving the same objective. The court suggested that the farmer could transport his sheep by road up to the gate into the paddock. Lewison LJ also took the view that, if the paddock and field were kept physically separate, the farmer could drive his sheep up the driveway into the paddock to graze and then allow them to spread into the field.
Allyson Colby, property law consultant
